Groscup v. Downey
| Citation | 65 A. 930,105 Md. 273 |
| Parties | GROSCUP v. DOWNEY. |
| Decision Date | 16 February 1907 |
| Court | Court of Appeals of Maryland |
Appeal from Court of Common Pleas; John J. Dobler, Judge.
Action by Samuel K. P. Downey, for the use of Robert C. Downey against Mary L. Groscup. From a judgment for plaintiff defendant appeals. Reversed and remanded for new trial.
Argued before BRISCOE, BOYD, BURKE, PEARCE, and SCHMUCKER, JJ.
Horton S. Smith, for appellant.
S. S Field, for appellee.
This suit was brought in the court of common pleas of Baltimore city to recover a commission alleged to have been earned by the equitable plaintiff, Samuel K. P. Downey, by procuring a purchaser for a house owned by the defendant, Mary L. Groscup. The plaintiff recovered a judgment for the amount of the commission claimed by him, and the defendant appealed.
There are no questions of pleading or of the admissibility of evidence presented by the record, which contains but two bills of exceptions, both of which relate to the court's ruling on the prayers. The first exception was taken to the refusal of the court to grant the defendant's prayer, offered at the close of the plaintiff's case, to take the case from the jury for want of legally sufficient evidence under the pleadings to justify a verdict for the plaintiff. The second exception was taken to the court's action on the prayers presented at the close of the entire case.
The testimony of the different witnesses displays much difference of recollection and some flat contradictions, but the record contains evidence tending to prove the following facts: The appellant, Mrs. Groscup, owned three lots of ground in Baltimore city, known as "Nos. 2915-17-19 Calvert street," upon each one of which a house was being built in the early part of the year 1905. William Groscup, the husband of the appellant, had charge and management both of the erection of the houses and the sale of the property. The fee-simple estate in the lots did not belong to Mrs. Groscup, but she owned a leasehold estate in each one of them, with the right to purchase the fee in it. A month or two before the completion of the houses Mr. Groscup requested or authorized the equitable plaintiff, Downey, who was a licensed real estate broker, to sell the houses for him at $8,500 each in fee. Mr. Downey had a customer, Mrs. Ella Mahon, who desired to purchase a residence in that neighborhood, and he informed Mr. Groscup of that fact and promised to see her. He saw Mrs. Mahon the next day, and called her attention to the Groscup houses, and made an appointment with her to meet Mr. Groscup at the houses at 4 o'clock that afternoon. He then informed Mr. Groscup of the appointment, and the latter met Mrs. Mahon according to the appointment at the houses, and showed them to her and offered to sell her one of them. About two months afterwards Mrs. Mahon bought the house No. 2915 Calvert street from Mrs. Groscup for $8,700 in fee, taking a deed therefor from her and her husband. The owner of the reversion in fee united in the deed, at Groscup's request, upon being paid out of the purchase money the value of the reversion. There is also evidence tending to prove that the customary commission of real estate agents in Baltimore city for effecting a sale of real estate is 2 1/2 per cent. upon the price paid for the property, and that, when a leaseholder authorizes the agent to sell the property in fee and procures it to be conveyed in fee, it is customary for his principal to pay him the usual commission on the full amount of the sale. There is evidence, on behalf of the defendant, tending to prove that the negotiations for the sale of the property instituted through the agency of Downey were abandoned, and that the sale was in fact the result of subsequent and independent bargainings between Mr. Groscup and Mrs. Mahon. Some of the most vital of the alleged facts which the evidence on behalf of the plaintiff tended to prove were flatly denied by the defendant's witnesses, but the weight of the evidence was a question for the jury. As both bills of exceptions relate to the court's action on the prayers, they can be considered together.
At the close of the whole testimony the plaintiff offered one prayer, which the court granted. The defendant offered four prayers, of which the first was a renewal of his prayer asking the court to take the case from the jury. The court grantéd the defendant's second and third prayers, after modifying the second one, and rejected her first and fourth prayers. The plaintiff's first prayer is as follows "If the jury find from the evidence that the defendant was the owner of the leasehold property known as '2915 N. Calvert street,' and that the defendant's husband, William Groscup, was her agent in charge of the said property and for the sale of the same, and that the defendant's said agent employed the plaintiff, Samuel K. P. Downey, to procure a purchaser for the...
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