Van Pelt v. Spotz

• Decision Date: 15 December 1927
• Docket Number: 94-1927
• Citation: 92 Pa.Super. 213
• Parties: Van Pelt v. Spotz, Appellant
• Court: Pennsylvania Superior Court

92 Pa.Super. 213

Van Pelt v. Spotz, Appellant

No. 94-1927

Superior Court of Pennsylvania

December 15, 1927

Argued October 11, 1927

Appeal by defendant from judgment of C. P. No. 2, Philadelphia County-1926, No. 651, in the case of David VanPelt and John VanPelt, trading as VanPelt and Company, v. Valeria M. Spotz.

Assumpsit to recover commissions for securing a buyer for real estate. Before Lewis, J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in the sum of $ 1,430.80 and judgment thereon. Defendant appealed.

Error assigned was refusal of motion for judgment non obstante veredicto.

Ulysses S. Koons, for appellant. -- Agency cannot be proved by declarations of the alleged agent alone: Mahoning Valley Bread Company v. Baltimore & Ohio Railroad Company, 83 Pa.Super. 379; Hileman v. Falck, 263 Pa. 351; Lawall v. Groman, 180 Pa. 532; Bunting v Goldstein, 283 Pa. 356.

Thomas Ridgway, for appellees.

Before Porter, P. J., Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

LINN J.

The plaintiffs, real estate brokers, have judgment on a verdict for commissions for obtaining a buyer of defendant's real estate. She complains that her motion for judgment n. o. v was refused. She asserts that while plaintiffs were authorized to find a buyer on terms and conditions satisfactory to her, she did not approve the terms and conditions submitted. The plaintiffs assert that she did approve and that her approval was communicated to them by her granddaughter, who, they say, was her agent for the purpose. Whether the evidence of authority of the granddaughter was sufficient, is the only point involved on this appeal.

The averments of the statement of claim and the evidence put in by the plaintiffs were to the effect that the agency was special and not general. In Hoffman v. Marano, 71 Pa.Super. 26, 28, we said: " . . . . the authority of a special agent must be strictly pursued. It has been stated that whoever deals with an agent constituted for a special purpose deals at his peril when the agent passes the precise limits of his power: Devinney v. Reynolds, 1 Watts & Serg. 328, 333. A special agent is one who is employed to do one specific act or certain specific acts only and does not bind his employer unless his authority be strictly pursued. Loudon Savings Fund Society v. Hagerstown Savings Bank, 36 Pa. 498 at 498-503." " 'Parties dealing with an agent known by them to be acting under an express grant, whether the authority conferred be general or special, are bound to take notice of the nature and extent of the authority conferred. They must be regarded as dealing with that grant before them, and are bound at their peril to notice the limitations thereto prescribed either by its own terms or by construction of law:' Mecham on Agency (2d ed.), section 707:" Deliman v. Greek Catholic Union, 275 Pa. 571, 574, 119 A. 606.

Agency cannot be proved by evidence of the alleged agent's declarations alone (Mahoning V. B. Co. v. R. R. Co., 83 Pa.Super. 379, 382) and if nothing more appears, the case should be withdrawn from the jury: Central Pa. Telephone Co. v. Thompson, 112 Pa. 118, 132, 3 A. 439. When plaintiffs closed their case they had shown no authority in the granddaughter to deal with the terms of sale in accordance with their contentions and no ratification by the defendant; defendant's motion for a non-suit could therefore have been granted with propriety. As the motion was refused, we inquire whether the evidence offered by defendant supplied what was lacking in plaintiffs' case; we all agree that it did not. The following extracts from the evidence of plaintiffs (and they follow the averments of the statement) show that they dealt with the granddaughter on the understanding that she was nothing more in the transaction than a means of transmitting messages between them and the defendant."

Q. And she [granddaughter] would inform you that she would report it to Mrs. Spotz [defendant]?

A. Yes, she did.

Q. And shortly afterward she told you what Mrs. Spotz had said?

A. Yes. . . ."

Q. What did you do then?

A. On Saturday morning I went to 1925 Spruce Street, and saw Mrs. Wescoat [the granddaughter], and presented her with a letter in which I made an offer of $ 50,000 cash for the house . . . .

Q. What did Mrs. Wescoat say to that?

A. Mrs. Wescoat said that she would submit that offer to her grandmother, Mrs. Spotz, and at the time we discussed the time of settlement, that is, when they wanted to give up the house . . . .

Q. How did that interview end on that day?

A. It ended by Mrs. Wescoat saying that this offer would be considered, then she would advise us on Monday what they would do about it . . . .

Q. When did you hear from Mrs. Wescoat after that?

A. I heard from Mrs. Wescoat on Monday morning.

Q. What did she say to you then?

A. She said that her grandmother had decided not to accept the $ 50,000 for the house." Plaintiffs then got an offer of $ 55,000 which they communicated to the granddaughter."

Q. What did she say when you told her that?

A. Well, now, that was early Wednesday morning, and Mrs. Wescoat said she would tell her grandmother that we had this offer from Mr. Bell for $ 55,000 cash, and that she would let me know a little later on in the day what her grandmother would do about it . . . .

Q. Mrs. Spotz herself never put any price on the house to you, did she?

A. Not personally.

Q. And practically all that happened was this, that you called up Mrs. Spotz's home and got in touch with Mrs. Wescoat, and told her these offers had been made and you requested her to make known those offers to Mrs. Spotz; is not that correct?

A. That is correct.

Q. And Mrs. Spotz never answered any of these communications or any information you gave over the telephone to Mrs. Wescoat; she never answered them?

A. No, Mrs. Spotz never came to the telephone until afterwards.

Q. But she never answered them on the telephone, and she never once accepted any of those offers -- I mean personally?

A. No, not personally. My dealings were with Mrs. Wescoat.

Q. You did business with Mrs. Wescoat?

A. Yes.

Q. And you only know what Mrs....