Weinberg v. Desser
| Decision Date | 05 July 1966 |
| Docket Number | No. 368,368 |
| Citation | 243 Md. 347,221 A.2d 66 |
| Parties | Daniel WEINBERG et al. v. Melvin DESSER et al. |
| Court | Maryland Court of Appeals |
Charles F. Wagaman and Elwood E. Hauver, Hagerstown (Wagaman, Wagaman, Meyers & Hauver, Hagerstown, on the brief), for appellants.
Joseph L. Nellis, Philipson, Lyon & Chase, Washington, D. C., and David W. Byron, Bushong, Byron & Moylan, Hagerstown, Dimitri R. Mallios, Washington, D. C., on the brief, for appellees.
Before PRESCOTT, C. J., and HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.
In this action by a real estate broker and salesman to recover commissions claimed to have been earned in connection with the leasing of a motel site, the questions on appeal relate to (i) the sufficiency of the evidence to justify submission of the case to the jury and (ii) the correctness of the instructions to the jury with respect to brokerage commissions. The owners and lessors, Daniel Weinberg and Frederick Innkeepers Corporation, were the defendants below and are the appellants and cross-appellees here. The broker and salesman, Melvin Desser and Armand L. Levinson, respectively, were the plaintiffs below and are the appellees and cross-appellants here.
The plaintiff Levinson and the defendant Weinberg were related and had been friendly for many years. Each frequently visited the home of the other and often discussed their business affairs. Sometime prior to September 1961 they had several conversations regarding the possible development of a twenty-eight acre tract of land located in or near Frederick at West Patrick Street and Baughman's Lane as a site for a motel and other prospective businesses. At the time of these conversations, Weinberg did not own nor did he have an option on the property.
In September of 1961, Levinson telephoned Weinberg and told him that he had found prospective lessees-Adolph and Joel Krisch, then unknown to Weinberg but described to him as successful Holiday Inn operators-and wanted to bring them to Frederick to see the proposed motel site. After Weinberg had been given a complete 'run down' on the Krisches and agreed to see them, Levinson rode with the prospects to Frederick, met Weinberg and looked over and discussed the property. No definite agreement was made at that time but it was agreed that either Weinberg or Levinson was to get in touch with the Krisches at a later date.
In December of 1961, Weinberg secured an option on the property from the owners. Thereafter, between January 1962 and February 1963, Levinson telephoned Weinberg frequently-thirty-four times according to the record Levinson had kept-regarding various aspects of the development of the property and his activities with respect thereto, including contacts with other probable lessees and prospective architects, contractors and mortgagees. Weinberg later communicated with an architect and one or more contractors referred to him by Levinson, and subsequently entered into a contract with one of the contractors to build the motel.
In June of 1962 Weinberg took title to the property which had been rezoned in February 1962. Prior to that date he had informed Levinson that he had received a Holiday Inn franchise. On or about the same time, Weinberg asked Levinson to find a lending institution in Baltimore to match one-half of the necessary funds already committed by a Frederick bank to construct the motel. Levinson, pursuant to the request, got in touch with several persons and mortgage finance companies and Weinberg went to Baltimore to see one of the persons referred to him.
In September of 1962, Weinberg met one of the Krisches in Baltimore (without saying anything to Levinson) to discuss the lease and after several months of further negotiations (conducted for Weinberg by a Washington realtor familiar with motel leasing and a Washington attorney) in which Levinson was not asked to participate, a lease was entered into on February 9, 1963, between the two Krisches and their sister and the corporate defendant, the Frderick Innkeepers Corporation, which had been organized by Weinberg in January 1963 and was wholly owned by Weinberg and his wife. Prior to the execution of the lease, however, Levinson, having found out about the negotiations, wrote Weinberg a letter in which he made his claim for commissions known by saying 'if you recall I went with the Krisches to (the) site when you first met them, therefore, I am to be considered the 'procuring agent's in this transaction and expect to be looked upon as same.'
At the trial, Weinberg testified that most of what Levinson did with respect to the lease was done 'without my knowledge, at his own initiative-not at my direction,' but he admitted that he had either 'met with the people' Levinson brought to him or 'talked with these people' Levinson told him to contact. One of the Krisches also testified that Weinberg 'has assured us we have no liability of the commissions-that was his responsibility.'
There was other testimony to the effect that while Weinberg and Levinson had discussed other business transactions on a number of occasions over a period of years, the construction and leasing of the motel, being the first to materialize, was the only transaction from which Levinson ever expected a brokerage commission; that Weinberg in September 1962 had offered Levinson a brokerage commission in connection with the development of the whole property; that Levinson was to receive a commission if he secured a tenant for a discount store or super market which Weinberg anticipated constructing at the rear of the property; that Levinson, with the encouragement of Weinberg, undertook to have a portion of the property developed for a nursing home or as an apartment site and toward that end, Levinson obtained approval from the Federal Housing Administration for the apartment; and that Levinson had carried on negotiations with the Krisches both before and after the trip to Frederick as to other possible motel sites in Baltimore.
At the close of all the evidence a ruling on the motion of the defendant for a directed verdict (based on the claim that the evidence was legally insufficient to entitle the plaintiffs to recover) was reserved by the trial court.
The court, after reviewing the facts briefly and instructing the jury as to the law, first, with respect to whether the relationship between Weinberg and Levinson was that of principal and agent or was a gratuitous act of friendship, and second, with respect to whether or not Levinson was the procuring cause of the execution of the lease, further instructed the jury, should it find for the plaintiffs, with respect to the several measures it could consider in determining the brokerage commissions. As to the commissions, the court informed the jury * * *. * * *. * * *.
The defendants excepted to the instructions for the reasons stated in the motion for a directed verdict and presented here as the basis for their appeal, that is, the refusal of the trial court to instruct the jury that the evidence was legally insufficient to entitle the plaintiffs to recover. The principal reason assigned by the plaintiffs for excepting to the charge, and the only one presented on their cross-appeal, is that the trial court should have instructed the jury (if it found for the plaintiffs on an implied contract) that the plaintiffs had earned and were entitled to customary commissions, that the best and only evidence of 'customary commissions' was the schedule of commissions adopted by the local real estate board and that there was (in this case) no difference between such 'customary commissions' and the 'fair and reasonable value' of the brokerage services the...
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...[U]nder this agency the appellants were obligated to pay the customary commission.... Likewise, the Court in Weinberg v. Desser, 243 Md. 347, 354-55, 221 A.2d 66 (1966), in response to an owner's assertion that the parties had "not" entered into a "contract of employment," stated: The argum......
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