Seilheimer v. Melville

• Decision Date: 15 October 1982
• Docket Number: No. 800730,800730
• Citation: Seilheimer v. Melville, 224 Va. 323, 295 S.E.2d 896 (1982)
• Court: Virginia Supreme Court
• Parties: Charles H. SEILHEIMER, Jr. v. Percy G. MELVILLE. Record

Page 896

295 S.E.2d 896

224 Va. 323

Charles H. SEILHEIMER, Jr. v. Percy G. MELVILLE.

Record No. 800730.

Supreme Court of Virginia.

Oct. 15, 1982.

Fred C. Alexander, Jr., Alexandria (Boothe, Prichard & Dudley, Alexandria, on briefs), for appellant.

Daniel M. O'Connell, Jr., Warrenton (O'Connell, Mayhugh & Payne, Warrenton, on brief), for appellee.

Before CARRICO, C. J., COCHRAN, POFF, THOMPSON, STEPHENSON and RUSSELL, JJ.

RUSSELL, Justice.

This action for real estate commissions presents a single issue on appeal: whether a plaintiff's rebuttal witness, testifying to matters which defendant had denied, was erroneously permitted to give impeachment testimony as to matters entirely collateral to the issues at trial. In the context in which the evidence was offered, we find no error in its admission.

Charles H. Seilheimer, Jr., a licensed real estate broker, became holder of a territorial franchise from Previews, Inc., a multi-state brokerage firm. He discussed with Percy G. Melville and Marshall Wallach, licensed real estate salesmen, an arrangement whereby they would act as his agents, divide commissions, and contribute to office expenses. This arrangement was never reduced to writing. Disagreement between Seilheimer and Melville as to its terms led to this litigation. Nevertheless, the three began operations under Previews' name and succeeded in closing a series of five sales in 1975 and 1976, which yielded commissions amounting to approximately $150,000.00. Melville contended that he should have received one-third of this amount, less his agreed contribution to office expenses, and claimed $47,083.33 as his share. Seilheimer contended that a part of the commissions was due to Previews, Inc., and that a larger deduction should be made for overhead. Melville received only $25,312.50 and brought this action for the difference, $21,770.83. His demand was later amended to $19,687.50.

The largest commission was received in connection with the sale of "Island View Farm" on March 1, 1976 to a German purchaser for a price of $1,329,331.83, plus additional consideration for personal property. Melville charged that Seilheimer had paid a part of the commission received on this sale to Friedrich Reventlow, a citizen of West Germany, who, Seilheimer thought, had interested the purchaser in the property. Seilheimer consistently denied making any payment to Reventlow. Such a division of commissions would have been improper because Reventlow lacked a Virginia broker's or salesman's license. The matter was thoroughly pursued in discovery. At trial, Seilheimer conceded that he had wanted to make the payment, but on cross-examination insisted that it was never actually made.

Melville then called as a rebuttal witness Frank J. Quayle, a broker with Roy Wheeler Realty Company, the agent for the seller in the Island View transaction. Over Seilheimer's objection, Quayle was permitted to testify that in conversations just before settlement, Seilheimer had informed him that the commission, which was to be divided equally between the purchaser's agents and the seller's agents, had been increased by agreement from ten to eleven percent and that the additional one percent was earmarked for payment to Reventlow since he could "continue to produce additional business and it was very important for him to receive the fee." Quayle determined, after consulting counsel, that such a payment could not legally be made. He said that he informed Seilheimer of this in a telephone conversation the evening before settlement, but that Seilheimer responded that he was going to get the one percent fee to Reventlow in Germany "discreetly." Quayle also quoted Seilheimer as saying that if Previews prevented the payment to Reventlow, the one percent fee would be divided between the seller's and purchaser's agents. Quayle testified that his firm never received its half of the one percent fee.

The jury returned a verdict in Melville's favor in the amount of $12,187.49. In moving to set it aside, Seilheimer argued that Quayle's testimony was not proper rebuttal, that it did not impeach his testimony, that it dealt with matters entirely collateral to the...