Rotella v. Lange, 5189
| Decision Date | 06 March 1961 |
| Docket Number | No. 5189,5189 |
| Citation | 202 Va. 575,118 S.E.2d 516 |
| Parties | WILLIAM ROTELLA, INDIVIDUALLY, ETC. v. JOSEPH A. LANGE, INDIVIDUALLY, ETC. Record |
| Court | Virginia Supreme Court |
C. Willard Norwood, for the plaintiff in error.
Nicholas A. Spinella (Donald B. Vaden; Spinella & Spinella, on brief), for the defendant in error.
Joseph A. Lange, a real estate broker, brought this action against William Rotella for commission alleged to be due under a listing agreement for the sale of Rotella's restaurant business called Eton Inn, on Grace street in Richmond. A jury returned a verdict in his favor for $900, the amount claimed, on which the court entered the judgment from which Rotella now appeals. The decisive question presented by the assignments of error is whether the verdict was contrary to the law and the evidence. The evidence is set forth in a stipulation agreed to between the parties.
By the listing agreement dated September 29, 1957, Rotella, the defendant, placed the property exclusively for a period of 45 days in the hands of the plaintiff, Lange, for sale at a price of $9,000 cash, and agreed to pay to the plaintiff as commission 10% of the sale price. The listing agreement bore a notation which indicated that the defendant was operating the business in property held under a three-year lease.
Baldacci, a salesman employed by the plaintiff, testified that in his efforts to find a buyer he contacted a number of people and finally obtained from Armstrong and Aprahamian an offer in writing dated November 7, 1957, to buy the business for $9,000, part cash and balance in monthly payments secured by chattel mortgage, which offer was rejected by the defendant 'as it was not for $9,000.00 all cash.' Baldacci then procured another offer in writing from the same persons dated November 8, 1957, for $7,000 all cash, which the defendant also rejected for the same reason. He later procured from the same parties a third written offer dated November 11, 1957, which is the basis of the present action, to buy defendant's business for $9,000 all cash, subject, he testified, 'to the following provisions: The offer to be binding on the prospective purchasers only if they could obtain an A.B.C. license, a health permit and a five-year lease on the building.' This offer was rejected by Rotella without stating any reason for doing so. Baldacci further testified that the same provisions with regard to A.B.C. license, lease and health permit were included in the two previous offers and that defendant did not at any time express any objection to these provisions. The three written offers were exhibited in evidence.
The plaintiff, Lange, testified that sometime after November 22, 1957 (which was the date of a letter from his attorney to Rotella to the effect that he would be sued if he did not pay the commission), Rotella telephoned him that he was ready to settle this sale for $9,000 cash but he told Rotella it was too late because Aprahamian had already purchased another business.
The offer of November 11, 1957, on which the plaintiff bases his right to commission, stated that it was 'subject to securing a board of health permit and a 5 yr. lease at $150 a month being obtained by the purchasers.' The two prior offers contained the same provisions.
Aprahamian, one of the offerors and a witness for plaintiff, testified that he told Rotella that he had had some difficulty before with his A.B.C. license and that he did not think he would be able to get another, and that in the presence of Rotella he had asked an A.B.C. inspector whether his partner could obtain a license in his name if he, Aprahamian, was not able to do so, and the inspector had said no. Aprahamian further testified that they (he and Armstrong) would not have bought Rotella's business if they could not obtain a five-year lease on the building, a health permit and an A.B.C. license. He said that after the offer of November 11, 1957, was rejected he made no attempt to obtain a lease or a license or a health permit on Rotella's business and purchased another business for $25,000 and obtained an A.B.C. license.
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...is necessary for contract formation and the terms of the acceptance must be identical to the terms of the offer. See Rotella v. Lange, 118 S.E.2d 516, 519 (Va. 1961); see also Epius Tech, Inc. v. Nat'l R.R. Passenger Corp., 407 F. Supp. 2d 758, 761 (E.D. Va. 2005). Thus, an "acceptance that......
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Quality Home Builders of Norfolk, Inc. v. Herrick
...a purchaser ready, willing and able to buy the real estate on the owner's terms.' 184 Va. 649, 35 S.E.2d 740. In Rotella v. Lange, 202 Va. 575, 578, 118 S.E.2d 516, 519 (1961), we said: 'In order to form a contract there must be no variance between the acceptance and the offer. 'A proposal ......
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Tooles v. Brunk
...broker was not entitled to recover a commission. The controlling principles are clearly expressed in the recent case of Rotella v. Lange, 202 Va. 575, 118 S.E.2d 516. There the owner listed property for sale with a broker at a stated cash price. The broker produced a purchaser who offered t......