FERNANDO R. SARI, INCORPORATED v. West, Civ. A. No. 9612.

• Decision Date: 03 April 1958
• Docket Number: Civ. A. No. 9612.
• Citation: FERNANDO R. SARI, INCORPORATED v. West, 160 F.Supp. 390 (D. Md. 1958)
• Parties: FERNANDO R. SARI, Incorporated, v. Marion E. WEST and Carlos E. Dixon.
• Court: U.S. District Court — District of Maryland

160 F. Supp. 390

FERNANDO R. SARI, Incorporated, v.Marion E. WEST and Carlos E. Dixon.

Civ. A. No. 9612.

United States District Court D. Maryland, Civil Division.

April 3, 1958.

Leonard S. Melrod, Washington, D. C., John J. Ghingher, Jr., Weinberg & Green, Baltimore, Md., for plaintiff.

George D. Solter, Due, Nickerson, Whiteford & Taylor, Baltimore, Md., David A. McNamee, Beatty & McNamee, Hyattsville, Md., for defendants.

CHESNUT, District Judge.

The plaintiff and defendants are and have been for several years past, real estate brokers in Washington, D. C., and Prince George's County, Maryland.In 1956the defendants, acting with authority from the owners, made a sale of farm property containing 250 acres to a purchaser known as Parkal Building Corporation.Their commission as finally paid by the owners amounted to $44,117.The plaintiff seeks to recover one-half of that amount on two grounds (1) by virtue of a special oral agreement between it and the defendants, and (2) because it was the procuring cause of the sale.The case was tried non-jury.

From the rather lengthy evidence in the case I make the following findings of principal and important facts, largely chronologically.

1.In 1953 a family known as D'Arago owned a farm consisting of about 250 acres fronting largely on the Marlboro Pike in Prince George's County, Maryland, situated about three miles from the District of Columbia Line.On October 15, 1953, the mother in this family died and the title passed by inheritance to a daughter and her father.The father was an aged person and Miss D'Arago acted for the family after her mother's death.The size and location of this property and its proximity to the City of Washington at once attracted the attention of many real estate dealers to the possibility of the sale for development or similar purposes, and many real estate brokers in Washington and Prince George's County interested themselves in the possibility of effecting a sale.The defendant, Marion E. West, who has been a practicing lawyer in Prince George's County for many years past, was the attorney for the family in the settlement of the mother's estate.While Miss D'Arago was not averse to selling the property, the first immediate problem was to ascertain approximately what would be the amount of federal estate taxes which must be paid from the proceeds of sale and she consistently refused to authorize any one to sell the property until this had been determined.She had also been personally acquainted for some time with the defendants and assured them that when she was ready to authorize a sale the so-called "listing" or authority to sell would be given to them.Dixon was a partner with West as real estate brokers.

2.Fernando R. Sari was the president and active officer of his corporation, the plaintiff in the case.He was one of the many brokers who, shortly after the death of Mrs. D'Arago, interested himself in the possibility of selling the property.He visited Miss D'Arago for the purpose of possibly obtaining her authority to him as broker to negotiate for a sale.He testified that she said that while she was not then ready to sell, as the estate had not been settled, she would give him "preferred" consideration when she was ready to sell.Miss D'Arago, however, flatly contradicted that and indicated in her testimony that she did not and would not have given him the listing of the property.She did, however, refer him to her attorney, Mr. West, whom he went to see early in 1954.Sari testified that on that occasion the special agreement was made between him and West which was to the effect that whenever West sold the property for the D'Arago family he, West, would pay Sari one-half of the commissions received whether or not Sari was the procuring cause of the sale.Or, as Sari as a witness expressed it, "You (meaning West) will be the attorney and I will be the broker".West denied explicitly that any such agreement had ever been made but that on the contrary all that he agreed to was (as in the same situation with a number of other brokers) that if and when Miss D'Arago authorized West to sell the property he, West, would divide commissions with Sari if the latter submitted a contract to buy the property which would be accepted by the D'Aragos.The special agreement as alleged by Sari was not in writing and not evidenced by any collateral contemporary correspondence.Such an agreement would have been a very unusual one between brokers and would have entitled Sari to one-half of the commissions irrespective of whether he, Sari, was the procuring cause of the sale or not.Furthermore, it is to be noted that at that time West had no authority from the owner to offer the property for sale.There is no incidental or collateral corroboration of Sari's contention.He has been an active real estate broker for 25 years but now is quite hard of hearing, using a hearing aid, and finds it difficult in expressing himself clearly as a witness.The question as to what was the agreement between Sari and West is purely a question of fact.The preponderance of proof would be upon the plaintiff who asserts it.Having heard both the parties as witnesses and having had an opportunity to consider their testimony respectively in the light of all the evidence in the case, I find as a fact that Mr. Sari's version of the agreement is not sustained and that Mr. West is correct.

3.The remaining question in the case to which most of the evidence related was whether in the absence of the special agreement asserted the plaintiff was entitled to one-half of the commissions as the procuring cause of the sale, and on this point I find the following facts from the whole evidence.

4.In 1954 as a real estate broker Sari tried to interest Mr. Lehrman, an officer of Giant Food, Inc.(a corporation operating a chain of supermarket retail stores in Maryland, Virginia, Washington and elsewhere) in the purchase of some property in Prince George's County, Maryland, as another location for a Giant Food Store.He showed Mr. Lehrman several properties in the vicinity of the D'Arago property and in the course of their journey they passed near the D'Arago property, and Mr. Lehrman said he might be interested in some way in having a Giant Food Store located there.Thereafter from time to time Sari telephoned or otherwise talked to Lehrman in a general way about the matter but without any special interest being shown by Lehrman and certainly without any offer being made by Lehrman either tentatively or indirectly.

5.Sometime shortly before June 1955 a Mr. Pennybaker, a real estate salesman for S. F. & G., Inc., a real estate brokerage office, had obtained a written offer from a man named Libby, to purchase the D'Arago property for $500,000.This offer was submitted to Mr. West but was flatly rejected by Miss D'Arago and the offer returned to Pennybaker.Shortly thereafter a second written offer was submitted to West with subordinate changes in the terms of the offer but was again definitely refused by the owner.Still later on June 8, 1955, a third written offer from Libby to purchase the property for $750,000 was likewise submitted to West but was again definitely rejected by the owner.Libby was not introduced to West by Pennybaker and West did not know who Libby was, although it subsequently developed that Libby was associated in business as a partner with Abramson and another under the name of Tower Construction Company, which, among other things, was engaged from time to time in the development of land sites.The business relationship of Libby and Abramson was not known to either West or Dixon until a few days before the making of the contract of sale of the property.

6.In October 1955 it was suggested to Sari that he might interest a Mr. Abramson, a real estate developer, in the purchase of the D'Arago land known as Purity Farm.Shortly thereafter Sari showed the property to Abramson and from time to time contacted him for the purpose of arousing his interest in the property.In January 1956 Sari engaged a Mr. Osborne (afterwards his son-in-law) as an assistant and thereafter in February 1956 Sari, having become temporarily ill, had Osborne continue to contact and interest Mr. Abramson.The latter went to Florida early in February.So far nothing had developed favorably with Abramson.

7.About February 24, 1956, Sari learned that the D'Aragos had finally given a listing of the property to West & Dixon, that is had given them authority to sell the property for a certain minimum amount.Sari, who was then personally indisposed, arranged through his assistant, Osborne, a meeting at his, Sari's apartment in Washington between Lehrman and Abramson on the one hand, and West & Dixon on the other.

8.On February 29, 1956, this meeting was held and Sari for the first time introduced Lehrman and Abramson to West & Dixon.At that meeting it appeared that Abramson was interested in the possible purchase of the property while Lehrman had no such interest as purchaser.The first question asked by Abramson was whether West & Dixon had authority to sell.They replied that they had.The question was then asked as to the minimum amount, which was stated to be $1,350,000.Abramson said the price was entirely too high.Dixon volunteered the information, apparently not previously known to Sari or to the others, that the prospective purchaser for development purposes ought to know that in the close vicinity of the property a number of lots had been sold as a part of a large subdivision to Negro owners.The number and size of the lots so sold was not then fully known.Another question was whether the area could be zoned for commercial purposes.As a result of the conference no offer was made by Abramson or Lehrman (despite some contrary evidence by Sari and Osborne) and it reasonably appeared to both West & Dixon that neither was really interested in the property or willing to...