Rutherford v. Mancuso

Marbury, J., delivered the opinion of the Court. The appellant, a licensed real estate broker, brought suit against appellee in the Baltimore City Court for commissions claimed due on the sale of certain real estate in Baltimore City. The case was tried before the court sitting without a jury, and resulted in a verdict for the defendant, and from the judgment on this verdict the case comes here. The appellee signed what is known as a multiple listing contract on November 13, 1939, by the terms of which the appellant was authorized to sell her property on commission at the rate of 5 per cent, an the first $5,000, and 3 per cent, on the balance.

The authority given in the contract was to continue for a minimum period of three months, and not for more than six months. Either party, by giving thirty days’ written notice, was authorized to cancel the contract at the end of the minimum period or any time thereafter. It was further provided that if any agreement to sell the property was negotiated during the life of the contract or within six months thereafter to anyone having made inquiry either directly or indirectly of the owner regarding said property during the life of the contract, then the appellant would be entitled to a commission on the amount for which the property was sold. The appellant, however, ⁶³⁰ was.to have no claim for commissions on any sale made by another realtor after the expiration of the contract.

On January 12, 1940, the appellee gave written notice to the appellant revoking and rescinding his agency to sell or list her property as of February 13, 1940, which was the end of the minimum period of three months. Within a few days of February 13, either before or after that date (and this is the crucial question), the appellant took a Mr. and Mrs. Pankow and a Mr. and Mrs. Welsh to see the property in question. Subsequently, in June, 1940, and unknown to the appellant, the Welshes and the Pankows bought the property. The settlement was made on July 2, 1940.

The appellant knew nothing about this sale until he happened to be passing the property early in the following October. He then stopped to see if it was still for sale by the appellee, and found that it had been sold. The date of the visit to the house by the appellant and the ultimate purchasers is the issue of fact which is determinative of the case. It is agreed that it was on Sunday.

The appellant states that it was Febrüary 11, which is two days before his contract expired. He is supported in this contention by the notes he made on his multiple listing cards of the property. One of these, dated February 4, 1940, is to the effect that Mrs. Welsh called and wanted to see the property on Saturday. The following Saturday would have been the 10th.

Then on the 11th, his card shows a note that he showed it that day to Sir. and Mrs. Welsh and Mr. and Mrs. Pankow. According to the note, they said they liked it very much, but could not possibly pay the price at which it was listed, which was $10,500, subject to a ground rent of $90. The appellee testified that the appellant was not there on February 11, and she thought it was a week and a half or two weeks after the contract had expired when he brought the purchasers there. She was unable to fix the exact date, but said it was after the sign was removed from the property on February 14.

Mrs. Pankow, one ⁶³¹ of the purchasers, said that the original appointment was made for February 11, but she was ill and couldn’t go, and a week or two weeks later, she went out with the appellant to see several houses. There were disadvantages to all of the first ones he showed her, and then he told her he had a piece of property, at least he did have it, and he thought it was still for sale, and the price was $12,500. She told him she could not purchase the property at that price, but, nevertheless, they went to look at it. This was the property of the appellee, which they finally bought.

She said she did not bother any more about this property until in June, when she was looking at another property not very far from this, walked by it, saw the appellee, found