Melbourne v. Griffith
| Citation | 263 Md. 486,283 A.2d 363 |
| Decision Date | 15 November 1971 |
| Docket Number | No. 69,69 |
| Parties | P. G. MELBOURNE v. M. W. GRIFFITH. |
| Court | Court of Appeals of Maryland |
David A. McNamee, Hyattsville (Samuel C. Steelman, Jr., and Beatty & McNamee, Hyattsville, on the brief), for appellant.
No brief filed on behalf of appellee.
Submitted to HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.
Appellee, M. W. Griffith (Griffith), a real estate broker, believes appellant, P. G. Melbourne (Melbourne), another broker, is indebted to him for a portion of the commissions on the sale of some Prince George's County real estate. He convinced a jury of that fact and recovered judgment. We shall here reverse that judgment.
Melbourne filed a motion for summary judgment which was decided adversely to him by a judge other than the judge who sat at the trial of the case. He points out that under Maryland Rule 887 on an appeal from a final judgment 'every interlocutory order which has previously been entered in the action shall be open to review by this Court unless an appeal has theretofore been taken from such interlocutory order and been decided on the merits by this Court.' He urges, correctly in our view, that his motion for summary judgment should have been granted.
Griffith has proceeded on the theory that the criterion for determining whether or not there is a commission due between co-operating brokers is whether the co-operating broker has been of some assistance in the matter to the broker of record. Such is not the Maryland law. In Bowie v. Martin, 199 Md. 58, 61, 85 A.2d 786, 787 (1952), Judge (later Chief Judge) Markell stated the rule to be that such cases are 'governed by the same legal principles as if (the broker) were owner instead of exclusive or broker.' See also Burrell v. Frisby 212 Md. 181, 186, 129 A.2d 75 (1957). The rule as between broker and owner is as stated by Judge (later Chief Judge) Henderson for this Court in Leimback v. Nicholson, 219 Md. 440, 149 A.2d 411 (1959):
'The broker must establish * * * that he is the primary, proximate and procuring cause, and it is not enough that he may have planted the seed from which the harvest was reaped.' Id. at 446, 149 A.2d at 414.
Griffith sued Melbourne alleging that Griffith was a duly licensed real estate broker in Maryland; that Melbourne was likewise so licensed; that Felix M. Irwin (Irwin) was a duly licensed real estate agent; that Melbourne as a broker during the years 1968 and 1969 was employed by the owner of certain lands in Prince George's County known as Hillsborough Subdivision of the Tenth Election District of Prince George's County; that Melbourne as such broker offered this land for sale on a co-operative basis with other brokers in the area, including Griffith; that Irwin was Griffith's agent; 'that as a result of such offering by (Melbourne) the said Felix M. Irwin procured a purchaser, Robert Bornstein, a member of R-B Associates, Inc. and Colony Construction Corporation; that as a result of the efforts of the said Felix M. Irwin, Agent of (Griffith), a contract for the sale of certain portions of the said Hillsborough Subdivision was entered into'; that settlement was held; that the sale price was in the amount of $101,500; the commission provided in said contract was in the amount of $10,150; that Melbourne received his commission of $10,150; that the agreement between Melbourne and Griffith through his agent, Irwin, provided that each broker would receive 50% of the commission; that Melbourne refused and continues to refuse to pay over to Griffith or his agent any portion of the said commission 'in violation of his agreement'; 'that through the efforts and services of (Griffith) through his Agent, Felix M. Irwin, (Griffith) was the procuring cause of the sale to the said purchaser of the said lands and as a result of (Melbourne's) refusal to share said commission as agreed, (Griffith) has been damaged.' Griffith demanded judgment in the amount of $5,075.
It is conceded that the land in question was sold to R-B Associates, Inc., under a contract dated January 15, 1969, which contract did in fact call for a commission to Melborne of 10% of the sale price of $101,500. Robert E. Bornstein executed the contract on behalf of the purchaser as its president. Melbourne took and filed Irwin's deposition. Irwin related that Melbourne advised him that 'his group would very much like to dispose of' the land in question, that if Irwin 'could find somebody that would be interested he'd very much appreciate it', and Melbourne 'would co-op the sale of the lots with (Irwin).' Irwin called a Mr. Bud Ourand with Artery Enterprises. Ourand indicated that he did not think Artery would be interested but he knew someone else who was looking for lots 'and this just might fill the bill.' Ourand mentioned a Bob Gainer. 1 From there the record is as follows:
'Q. Did you, yourself, talk to Mr. Gaynor? A. No, I did not.
'Q. Now, did Mr. Gaynor end up buying the property? A. No, Mr. Gaynor did not, as far as I know. I really don't know exactly what happened. As far as I know, he did not.
'Q. Well, as far as you were concerned, how did Mr. Bornstein come into the picture? A. Through Mr. Gaynor.
'Q. Did you ever talk to Mr. Bornstein? A. No, I did not.
'Q. Well, actually, my question here concerns how you procured Mr. Bornstein. Now, is what you have told me the substance of the way that you secured Mr. Bornstein? A. In substance.
There were several phone calls back and forth to Ourand. He was telling me that Gainer (sic) had another gentleman by the name of Bloom and they were going to try to buy them together. And Gaynor, I understood it, was looking for a financial backer to help them buy these lots. And from time to time, Ourand told me what was going on, but I never talked to the gentlemen, themselves.
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