Rodblatt v. Fox

Markell, J., delivered the opinion of the Court. This is an appeal, in a non-jury case, from a judgment for defendant in a suit by a real estate broker for commissions. Plaintiff says that he was employed by defendant in May, 1946 to find a purchaser for defendant’s grocery and package liquor business and stock at 1531 E. Preston Street and he found one or two purchasers ready, willing and able to buy on defendant’s terms but ⁶²² defendant refused to sell. Defendant denies that he ever employed plaintiff or ever agreed to sell to any purchaser procured by plaintiff.

Plaintiff correctly says this case “should be decided on the facts”. The trial judge saw and heard the witnesses. The testimony of the parties and other witnesses is flatly contradictory. Both parties vigorously attack the credibility of the opposing testimony.

Unless the trial judge was clearly in error in not accepting plaintiff’s evidence and rejecting defendant’s, the judgment must be affirmed. Defendant and his wife, as tenants by the entireties, owned the building in which the business was carried on; they lived over the store. Plaintiff says defendant in 1945 telephoned him and asked him to sell his business as his wife was very sick, and later told him his wife had just come home from the hospital and he was not going to sell it right then because he couldn’t “go around idle” and was forced to change his mind. In May, 1946 defendant telephoned him again and said he had decided to sell for “$35,000 key-money” (for good will), plus the price (cost or value?) of the stock, and that if plaintiff got him the price he would get his commission; plaintiff asked for a written contract, but did not get one; plaintiff asked what was the average business per week, defendant said “about $33,000 to $35,000 a year”; plaintiff sent to defendant one Turk and later one Roskos (ostensibly two “prospects”, but actually partners in the proposed venture), who were ready, willing and able to purchase, but defendant refused to sell.

Defendant denies that he ever asked plaintiff to find him a purchaser, but says plaintiff importuned him to sell and he consented to let plaintiff send Turk, a person desiring to purchase, to look over the store; he says he did not tell Turk or Roskos he would sell the business (and sell or lease the building) but told both he would not sell unless he found some other place to go, especially because his mother-in-law was ill of an incurable disease. On cross-examination, plaintiff said his understanding with defendant was that if he brought the customer to de ⁶²³ fendant and defendant took that customer then he would get paid. The trial judge evidently found that this was the extent of the oral understanding between plaintiff and defendant; in his opinion he says, “The plaintiff was constantly importuning him to sell and finally he told Rodblatt that if he produced a purchaser who would meet his terms and if he, the defendant, deeided to sell, Rodblatt’s commission would be taken care of.” Suit was instituted in October, 1946. In January, 1947 defendant advertised the business for sale in a cousin’s real estate trade name; in June, 1947 defendant sold the business.

Turk says he went two or three times to look over the store, the first time with his mother, the second with Roskos; the first time he asked defendant whether the business was for sale and defendant said it was; defendant “took a piece of paper and wrote it down, what he made this week and what he made last”; he said, “I want this for the key, thirty-five thousand, and * * * this for the rent, one hundred and fifty dollars”; he “wrote it all down on this piece of paper which he then pushed over to me”. The paper was not produced in evidence. The Turks went home and “talked it over”; they “wanted to think about it and to discuss it”. Turk next went down with Roskos because he was looking for a partner to make it easier for him to purchase the business; he telephoned Roskos and asked him if he would be interested and Roskos said he would.

Turk and Roskos did not then present a contract to defendant and sign it, because “a business of that size is not bought on a skip and a jump. It is thought over and discussed. That was the purpose of our discussing it to make sure that every move that we made was right”. Some days later Turk gave the plaintiff a check, dated June 6, 1946, to the order of defendant, for $3500, bearing an endorsement “This check is a deposit for Sam Fox Grocery & Package Liquor Store at 531 E. Preston Street for store, fixtures, grocery stock and good-will, at the price of $35000 plus $ for $ for liquor stock subject to 5 year lease with 5 year privilege of renewal for entire building at $150.00 per month ⁶²⁴ with a guarantee of $3000 weekly business.” Plaintiff says he showed defendant the check and left him a photostatic copy of it; defendant would not accept the check but asked a few days to think it over