Nora Cloney & Co. v. Pistorio

Smith, J., delivered the opinion of the Court. This is yet another dispute between a property owner and a real estate broker. Cf. Assoc.

Realty Co. v. Cadillac Jack Enterprises, Inc., 250 Md. 371 , 243 A. 2d 543 (1968) and Sellner v. Moore, 251 Md. 391 , 247 A. 2d 523 (1968). Appellant broker (Cloney) received an inquiry concerning the availability of land in the vicinity of land of appellees (Pistorio). Cloney arranged a meeting between Pistorio and the prospective purchasers on June 29’, 1965. At that time there was a hand shake between Pistorio and the potential purchaser.

A written contract was to be prepared but was never prepared. Pistorio was to pay Cloney a commission of $165,000.00 based on 6% of the sales price of $2,750,000.00. A dispute exists as to whether Pistorio changed his mind as to what terms should be in the contract in the intervening days or whether the purchasers changed their minds. It is undisputed, however, that there was a telephone conversation on August 11, 1965, between counsel for Pistorio and one of the pur ⁵¹³ chasers in the presence of Mrs. Cloney.

Counsel testified that at that time the prospective purchaser did not want the property unless there was change in the zoning and that the purchaser said if there were to be no change “to forget about it”. It was Pistorio’s contention that a change in the zoning classification was not contemplated in the original oral agreement. The sole question in this case is the propriety of the trial court’s instruction to the jury. Cloney complains because, at the request of Pistorio, the jury was instructed: “Now, further, if you find that Mr. Pistorio offered to execute a written contract on August 11, 1965, and he spoke with Mr. Eichtman, at the terms agreed upon at the meeting of June 29, 1965, and if you find Mr. Eichtman declined to execute, then you must find that Mr. Lichtman was not ready, willing and able to purchase the property and you must find for the Defendant, otherwise, the Plaintiff.” having already been instructed at the request of Cloney: “Now, if you should find from the evidence presented that the employment agreement entered into between the Defendant and the Plaintiff was to sell or find a purchaser for the Turf Valley property, and, having so found, if you should find, further, that the Plaintiff did procure a purchaser ready, willing and able to purchase the Turf Valley property upon the terms authorized by the Defendant, and having so found, if you, the Jury, should find, further, that the Defendant was advised of this fact, and, having so found, if the Jury further find that the actions and statements of Mr. Hogg and Mr. Pistorio, between June the 29th, 1965 and August 11th, 1965, constituted a refusal on the part of the Defendant to consummate the sale to the prospective purchaser within the terms authorized by the Defendant, then the Jury should find in favor of the Plaintiff.” Cloney contends that the trial court in granting this instruction: (1) committed prejudicial error; (2) prejudiced the right ⁵¹⁴ of the plaintiff to sustain its claim by confusing the jury with conflicting instructions “so inconsistent that conformity with one necessarily implies a disregard of the other”; (3) prejudiced the right of the plaintiff to sustain its claim by segregating the evidence and restricting the consideration of the jury to* only the evidence