Lanard & Axilbund, Inc. v. Binswanger

• Decision Date: 13 June 1968
• Citation: Lanard & Axilbund, Inc. v. Binswanger, 242 A.2d 912, 212 Pa.Super. 350 (Pa. Super. Ct. 1968)
• Court: Pennsylvania Superior Court
• Parties: LANARD & AXILBUND, INC. v. Frank G. BINSWANGER, Jr. and Binswanger Corporation, Appellants.

Page 912

242 A.2d 912

212 Pa.Super. 350

LANARD & AXILBUND, INC. v.Frank G. BINSWANGER, Jr. and Binswanger Corporation, Appellants.

Superior Court of Pennsylvania.

June 13, 1968.

Petition for Allowance of Appeal Denied Aug. 15, 1968.

Louis J. Goffman, H. Robert Fiebach, Philadelphia, for appellants.

Allen J. Levin, Goodis, Greenfield, Narin & Mann, Philadelphia, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING and HANNUM, JJ.MONTGOMERY, Judge.

The plaintiff, Lanard & Axilbund, Inc., brought this action in trespass against the defendants, Frank G. Binswanger, Jr., Richard Calhoun and Binswanger Corporation, to recover damages for loss allegedly sustained by it due to the defendants wrongfully inducing Bue, Inc., the owner of certain commercial property located at Fourth and Willow Streets, Philadelphia, to breach a real estate contract it had with the plaintiff.The particular breach asserted was that Bue executed a lease of these Fourth and Willow Street premises through the defendantBinswanger Corporation as its agent to Charles Price at the time plaintiff's exclusive agency contract with Bue was in effect.The individual defendant, Frank G. Binswanger, Jr., is president of such corporation, and the defendantRichard Calhoun is a salesman in its employ.

After a trial without a jury Common Pleas CourtNo. 2 of Philadelphia rendered a decision in favor of the plaintiff against the defendant Binswanger, individually, and the Binswanger Corporation; and assessed damages in the sum of.$4,380, which included $2,190 as compensation for loss of commission and $2,190 punitive damages.The court found in favor of defendant Calhoun against the plaintiff.Upon the dismissal of their exceptions to the verdict of the court because of a divided court en banc consisting of the trial judge and one other, defendantsBinswanger and Binswanger Corporation appealed.

The undisputed facts of the case are that the plaintiff was the exclusive agent of Bue, Inc., for the sale or rental of the Fourth and Willow Street premises.The written agreement, dated February 4, 1964 stated, inter alia, that until the 'withdrawal of this agency, as hereinafter provided, no one shall offer said property for rent or sale but LANARD & AXILBUND, INC., and if leased or sold prior to the withdrawal of this agency, no matter by whom it shall be leased or sold, exclusive of the firms listed below, we agree to pay LANARD & AXILBUND, INC., a commission in accordance with the Schedule of Commissions as adopted by the Philadelphia Board of Realtors.'

The schedule of commissions for the Philadelphia Board of Realtors set forth various rates based on a percentage of the rents or sale price received from the property, and recognized that there might be another broker involved who cooperated in closing a transaction.The commissions for a lease where the realtor did not collect the rents were five per cent of the rent for the first year, four per cent of the rent for the second year, and three per cent of the rent for the remainder of the term, payable at the execution of the lease.In the event there was a cooperating broker, fifty per cent of the net commissions received by the original realtor were suggested as the proper amount to be paid to such cooperating broker.

In July or August of 1964defendant Calhoun telephoned Mr. Arthur Balsam, a vice president of plaintiff, and advised him that he had a prospect to whom he wished to show the Fourth and Willow Street property.No salesmen of plaintiff were available at the time, but Balsam arranged for a representative of Bue to show the premises to the prospect.The prospect, Charles Price, saw the premises through this plan of appointment and ultimately executed a five-year lease, dated September 22, 1964, such lease being arrived at entirely through the efforts of Binswanger Corporation and the owner, Bue, Inc.The lease between the parties was prepared on the Binswanger lease form although the normal practice in the real estate business is to prepare the lease on the form of the broker originally representing the owner.

On the day this lease was executed Bue communicated to plaintiff by telephone and confirming letter the fact that Price had leased the subject property and also offered plaintiff a commission for its assistance in bringing about the tenancy based on an amount equal to two and one-half per cent of each year's gross rental payable during each month of the term of the lease and any renewals thereof.This letter further stated that, 'It is understood that the gross monthly rental during the first year shall be $4,583.33; during the second year, $5000.00; and during the third to fifth years, $5250.00; * * *' A similar letter was sent by Bue to defendantBinswanger Corporation on the same day agreeing to pay that company the same two and one-half per cent commission on each year's rental.Plaintiff accepted this offer and under this arrangement will receive $7,600 in monthly payments by the end of the five-year term for which the lease was written.Under the terms of its original exclusive agreement with Bue, plaintiff would have been entitled to $10,820 in a lump sum at the time of the execution of the lease, according to the schedule of commissions adopted by the Philadelphia Board of Realtors where rents are not collected by the original broker.Of this amount it would have paid fifty per cent to Binswanger Corporation in accordance with the recommendation of the Board of Realtors, leaving it a net of $5,410.

Plaintiff argues, however, that if it had negotiated the lease it would have been entitled to collect the rents and would have been entitled to the full commission of $15,200, from which it would have paid Binswanger Corporation under a long standing commission arrangement, not fifty per cent of the commissions received, but fifty per cent of the first year's commission, forty per cent of the second, and thirty per cent of the third, fourth, and fifth years or a total of $5,410, leaving it $9,790 as its share.However, the agreement between it and Bue says nothing about the collection of rentals.It merely authorizes plaintiff to lease the premises.Therefore it was the right of Bue to collect the rentals, which it...