Fornara v. Wolpe

• Decision Date: 24 May 1924
• Docket Number: Civil 2088
• Parties: GEORGE FORNARA and JOSEPH VALDRINI, Appellants, v. I. F. WOLFE, Appellee
• Court: Arizona Supreme Court

226 P. 203

26 Ariz. 383

GEORGE FORNARA and JOSEPH VALDRINI, Appellants, v. I. F. WOLFE, Appellee

Civil No. 2088

Supreme Court of Arizona

May 24, 1924

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Affirmed.

Mr Benton Dick, for Appellants.

Messrs Gandy & Cunningham, for Appellee.

OPINION

McALISTER, C. J.

Appellee, I. F. Wolpe, recovered judgment against George Fornara and Joseph Valdrini for $1,050 for services as a real estate broker and they appeal.

The complaint contains two causes of action, one based upon an express and the other upon an implied contract. In the first the plaintiff alleges that at the special instance and request of the defendants he rendered services in obtaining a tenant or lessee for their hotel property located at the northwest corner of Washington and Fifth Streets, city of Phoenix, for which they promised and agreed to pay him the usual and customary commission paid in that vicinity to real estate agents for like services, to wit, 5 per cent of the amount of the rental for the first year and 2 1/2 per cent of the amount for succeeding years; that he found and procured a lessee, namely, the Grand Hotel Company, a corporation, for a term of ten years, at a rental of $2,700 for the first year and $36,600 for the succeeding nine years, and that the reasonable value of his services is $1,050, no part of which has been paid, though payment has been requested. The allegations of the second cause of action are the same in all aspects except this: They omit the allegation of promised payment, and rely upon an implied promise to pay the commission customarily paid brokers in the vicinity of Phoenix for like services, which it alleges to be 5 per cent of the amount of the first year's rental and 2 1/2 per cent of that of the succeeding years.

The answer is a complete denial of both causes of action.

The case was tried with the aid of a jury, which returned a verdict in favor of the plaintiff for $525, whereupon he moved for judgment for $1,050, the full amount asked for, notwithstanding the verdict, and this was granted by the court.

It appears from the testimony of appellee, who was at that time a real estate agent and broker in Phoenix, that in the fall of 1921 the defendant authorized him to find a tenant for a hotel they were then building; that he put his sign on the building and ran advertisements in the daily papers. That appellants gave him the following terms for a ten-year lease: $275 per month for the first year, $300 the second, $325 the third $325 the fourth, and $350 the remaining years, or a total of $39,900; that he told them his commission would be 5 per cent of the amount of rental for the first year and 2 1/2 per cent of that for the remaining years, which was the costumary and usual rate in that vicinity as well as that fixed by the Realty Board of Phoenix, and amounted to $1,080; that Valdrini talked with Fornara, who was present during their conversation, and then said to appellee: "All right, you go ahead and get that man. We will talk business"; that early in November he told one Henry Shry, then proprietor or the Annex Hotel in Phoenix, of this hotel and took him to see it and while there viewing it introduced him to its owners, the appellants; that he afterwards took one of the latter to look at the Annex Hotel for the purpose of gaining pointers, either concerning Shry or the new building; that Shry was agreeable to the deal, but that thereafter there ensued negotiations regarding the arrangements and changes in the building and terms of lease, in which one or both of the defendants and Shry or Wolpe took part, and that appellants within a short time, without the knowledge or appellee, and on about the same terms given him by appellants, consummated the lease with Shry, who took it in the name of the Grand Hotel Company, a corporation which was organized by him solely for this purpose, and whose stock was held by him and his wife.

T. M. Burroughs, a real estate broker in the city of Phoenix for fifteen years, called in behalf of appellee, testified that he was acquainted with the usual and customary schedule of commissions for leasing property in Phoenix, and that it was 5 per cent for the first year and 2 1/2 per cent, for the years thereafter.

The evidence in behalf of appellants was directed entirely to the question of the employment of appellee and the rendition of services by him. Valdrini testified that Wolpe was not employed to obtain a tenant for the property, and that he did not do so, though he admitted that the latter viewed it with Shry, who later took a lease on it in the name of the Grand Hotel Company. Neither he nor his partner, Fornara, however, said anything about the amount of the commission. Their defense was no employment and no service rendered, and if they succeeded in either necessarily no commission whatever could be collected, but if they failed in both appellee was entitled to recover, and the only evidence upon which a verdict for the amount due could be based was that given by him and the witness Burroughs. Hence the court instructed the jury that if it found that the defendants were liable to the plaintiff there was no dispute as to the amount due, and their verdict should be for the full sum asked for, to wit, $1,050.

Appellants' first assignment attacks this instruction upon the ground that the case was submitted upon both causes of action, or rather upon both counts, an express contract and a quantum meruit, it being their contention that if the jury concluded appellants were liable upon the implied contract it was deprived of the right to say what the reasonable value of the services was. But under the testimony the amount due appellee, if any, at all, whether upon the express or the implied promise, was not in dispute, the evidence on that question being absolutely uncontradicted and of such a nature -- not opposed to the probabilities of the case -- that it should not have been disregarded. 23 C.J. 42. In discussing the weight to be given the uncontradicted testimony of a witness having personal knowledge of the market value of a commodity at a given time and place, the court said in effect (syllabus) in McNamara v. Georgia Cotton Co., 10 Ga.App. 66., 73 S.E. 1092:

"Testimony of a witness having personal knowledge as to the market value of a commodity at a given time and place is evidence of a substantive fact, and, if undisputed, will demand a finding that the commodity was of value fixed by the witness. In such a case, the jury cannot arbitrarily disregard such testimony and substitute their own opinion as to the market value of the commodity."

If, therefore, appellants were liable at all, they were liable for the sum shown by the evidence, and the only issue which could possibly have arisen under either count relative to the amount was not how much but whether the full sum asked for or none was due. If the agreement were an express one, it was the full sum claimed, because the testimony was that appellee told appellants his commission would be 5 per cent of the first year's rental and 2 1/2 per cent of that for the remaining years; and, if it were an implied one, the amount was the same, because the evidence discloses that the customary charge in the city of Phoenix for procuring tenants was 5 per cent of the first year's rental and 2 1/2 per cent of that for the remaining years, and in the absence of a special agreement the agent is entitled to a reasonable compensation which, ordinarily, is the amount allowed by the custom or usage prevailing locally among that class of brokers. 9 C.J. 580. In Webb v. Wolfard, 56 Or. 394, 108 P. 1005, the court used this language:

"Nothing was said by either of them at that time regarding the amount to be paid as commission. Under such circumstances, the law implies a promise on the part of defendant to pay the usual or customary commission...