Burrell v. Frisby

Brune, C. J., delivered the opinion of the Court. This is a controversy between two real estate brokers with regard to one-half of a broker’s commission for the sale of a church. The disputed commission was paid into court in an interpleader proceeding filed by the attorney who had been employed by the owner to sell the church property. The court ordered the disputed amount to be paid to the appellee, and the other broker has appealed from that order.

Both the appellant, James J. Burrell, and the appellee, J. Arnett Frisby, are licensed real estate brokers in the City of Baltimore. In May, 1954, the appellant’s agent, Pratheaus C. Land, noticed a “For Sale” sign on the church building belonging to the Central Summerfield Methodist Church (referred to below as the “Central Church”), located on Poplar Grove Street, in the City of Baltimore, which read: “H. B. Rollins, Attorney or your broker”. H. B. Rollins, an attorney at law, was the authorized exclusive agent of the Central Church handling the sale of its church property. Land got in touch ¹⁸⁴ with Rollins, who agreed to split the commission with Land if the latter should procure a purchaser who was not already interested in the purchase of the church.

The appellant showed the property to representatives of another church (referred to below as the “Rehoboth Church”), the purchaser, but which, at that time, did not wish to buy the property. About two months later, Charles A. Reid, the agent of the appellee, observed the same “For Sale” sign and got in touch with an officer of the Central Church in order to show the property to his prospective buyer. This buyer was the same Rehoboth Church which had been shown the church by Land. As a direct result of the efforts of Reid and the appellee, a sale was consummated.

The Chancellor found in substance that the “For Sale” sign created an implied offer to pay one-half of the commission to any broker who was the procuring cause of the sale and that the appellee was the procuring cause of the sale. The appellee filed a motion to dismiss the appeal because the appellant did not comply with the Rules of this Court in regard to the preparation of his brief and the printed record extract. The irregularities complained of do not appear to have prejudiced the appellee. We, therefore, overrule the motion and will turn to the merits of the case.

The appellant contends: (1) that the lower court should have granted his motions for Summary Judgment; (2) that the “For Sale” sign did not create an implied offer or contract of employment between Rollins and the appellee; (3) that since the appellee was not employed, the fact that he was the procuring cause of the sale is not of itself sufficient to entitle him to a commission. 1. Motions for Summary Judgment. In response to the bill of interpleader filed by Rollins, the appellant filed an answer and the appellee filed a demurrer. About two months later the appellee filed a motion for hearing on the demurrer.

Some five months thereafter but before any hearing on the demurrer (and apparently none was ever held), the appellant filed a motion for summary judgment. An order nisi was entered thereon. Quite promptly thereafter the appellee filed an answer to the original bill and an answer to the motion ¹⁸⁵ for summary judgment in which he recited (seemingly erroneously) that his demurrer had been overruled and stated that he had fully answered the bill and had set forth the nature and extent of .his claim to the commissions and that the matter was at issue and ready for hearing. A hearing was held on the motion a few days later and it was denied.

In view of the conflicting claims then presented by the respective answers of Burrell, the appellant, and of Frisby, the appellee, we think that the motion was properly overruled. We agree with the appellant that the mere filing of an answer would not necessarily be fatal to a motion for summary judgment, but we think that the claim asserted in Frisby’s answer did warrant a finding that there was a genuine conflict between the parties. We are also of the opinion that there was no error in denying Burrell’s subsequent motion for summary judgment which rested upon substantially the same ground as the first. See our former General Rules of Practice and Procedure, Pt.

Two, IV, Rules 1-5, now incorporated in the present Maryland Rules, Rule 610; Kerner v. Eastern Dispensary & Casualty Hospital, 210 Md. 375 , 123 A. 2d 333 ; Strickler Engineering Corp. v. Seminar, Inc., 210 Md. 93 , 122