Matas v. Green

• Decision Date: 07 June 1961
• Citation: 3 Storey 473,53 Del. 473,171 A.2d 916
• Parties: , 53 Del. 473 Abraham J. MATAS, Plaintiff, v. Harold N. GREEN, David B. Sapp and Jack H. Topkis, Defendants.
• Court: Delaware Superior Court

Page 916

171 A.2d 916

3 Storey 473, 53 Del. 473

Abraham J. MATAS, Plaintiff, v. Harold N. GREEN, David B. Sapp and Jack H. Topkis, Defendants.

Superior Court of Delaware, New Castle County.

June 7, 1961.

H. Newton White, Wilmington, for plaintiff.

Harold Shaffer (of Keil, Shaffer & Keil), Wilmington, for defendant Sapp.

Norman N. Aerenson, Wilmington, for defendants Green and Topkis.

DUFFY, Judge.

This is an action for a broker's commission. Plaintiff, Abraham J. Matas ('Matas'), alleges that: defendants authorized him to procure a buyer for land owned by them and that he had similar authority from William Webb ('Webb'), owner of a contiguous parcel; that he produced Food Fair Stores, Inc., ('Food Fair'), which was an able, ready and willing buyer for both parcels at a price of $115,000 of which $65,000 was for the land owned by defendants and $50,000 was for the land owned by Webb; that together, but not separately, the parcels were large enough for Food Fair's purposes; that after defendants accepted Food Fair's offer, they sold their land to American Stores Company ('American Stores') for $66,000.

Plaintiff asks for a broker's commission (6%) on the $115,000 or, alternatively, on $65,000.

Defendants Green and Topkis answered, generally denying plaintiff's allegations. Defendant Sapp answered separately, generally denying plaintiff's allegations and asserting a cross claim against the other defendants for any sum judged to be due from him to plaintiff.

The depositions of Matas and Webb were taken and defendant Green filed an affidavit. All defendants moved for summary judgment and, at argument, plaintiff, without objection, also moved for summary judgment.

The Court is obliged to grant a motion for summary judgment if the pleadings, depositions and affidavits show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Del.C.Ann. The moving party must show that, on unquestioned facts, he is entitled to a judgment as a matter of law. McKeough v. Witman, Super.Ct.1956, 11 Terry 230, 127 A.2d 234. When defendant is the moving party, the facts are taken in the light most favorable to plaintiff. Wilkes v. Melice, Super.Ct.1953, 9 Terry 206, 100 A.2d 742; Engle v. Poland, Super.Ct.1952, 8 Terry 365, 91 A.2d 326. And, conversely, when plaintiff is the moving party, the facts are taken in the light most favorable to defendant. Nationwide Mutual Insurance Company v. Mast, Del.Super.Ct.1959, 153 A.2d 893.

Matas was one of several brokers authorized to offer defendants' property. His right to compensation thus turns on whether or not he produced a purchaser able, ready and willing to buy defendants' property on terms satisfactory to them before they contracted to sell to American Stores. Slaughter v. Stafford, Super.Ct.1958, 1 Storey 168, 141 A.2d 141.

It seems to be conceded by plaintiff that Food Fair's offer to buy defendants' property was contingent upon its opportunity to buy Webb's property at the same time. Defendants contend that on August 15, 1958, when they contracted to sell to American Stores, Webb had not 'obligated himself' nor 'manifested his assent to sell to Food Fair'. In support of this, defendants point out that Webb twice testified in his deposition that on August 15, 1958, he left Food Fair officials, saying that he wanted to wait until Monday (August 18, 1958) before giving...