Zetlin v. Scher

Marbury, J., delivered the opinion of the Court. On October 20, 1961, Freda Scher, a licensed real estate broker, instituted suit against Henry Zetlin to collect a commission which she claimed to be due and owing her as the result of her successful efforts in procuring a buyer to purchase from Zetlin a parcel of real estate improved by premises No. 3505 Clarks Lane in Baltimore City. Trial was held on April 24, 1965, before Judge Cullen, sitting without a jury, and a verdict and judgment was entered in Scher’s favor in the amount of $1590 (6% of the property’s sale price of $26,500) , 1 At issue on this appeal is whether there was evidence from which the trial judge could have properly found that the person who signed the contract of sale as buyer (with whom Scher ⁵⁹² admittedly had no pre-sale contact) was actually an agent or straw party for the real púrchaser, Meadowbrook Construction Company, of which David O’Dunne was the president. It was uncontroverted that O’Dunne became interested in buying the property solely through the efforts of plaintiff-appellee Scher.

Late in 1960 the appellee was asked by Zetlin to list his Clarks Lane property for sale, orally advising her that he wished to receive a price of between $26,000 and $27,000. A written listing contract was not entered into and Scher was later to testify that Zetlin never discussed a sales commission with her, while the latter testified that he offered her a $500 commission. Pursuant to this oral understanding Scher testified that she immediately posted a for sale sign on the property disclosing herself as the agent for the property’s sale and ran advertisements to the same effect. After producing two prospective purchasers whose offers did not meet Zetlin’s asking price, Scher succeeded in interesting David O’Dunne, a Baltimore builder, in the purchase of the property.

At the trial it was undisputed that David O’Dunne was introduced to Zetlin by the plaintiff Scher, and that the immediate result of.this introduction was some discussion between O’Dunne and Zetlin about a possible partnership between the two whereby O’Dunne would build apartment houses on the Zetlin property here involved. According to O’Dunne, hope of a partnership with Zetlin was almost immediately abandoned because of a “question of personalities,” and he set out to secure independent financing to purchase the property. O’Dunne, who was called by the plaintiff Scher, testified that he interested a Mrs. McCormack (who did not testify at the trial) in the idea of putting up the $26,500 purchase price for the Clarks Lane property, that he introduced her to Zetlin, and that it was agreed that Mrs. McCormack would put up the money and sign the contract, which she did along with Zetlin and his wife. It was Mr. O’Dunne’s testimony that Mrs. McCormack was merely “a gal that had some dough that she wanted to invest and I found her a place to put it.

But she had no conception of what was going on.” On direct examination O’Dunne testified that Mrs. McCormack held the property only until he made her an officer of the Meadowbrook Construction Corpo ⁵⁹³ ration; she then transferred it to the latter corporation, which was still its owner at the date of trial. On cross examination, O’Dunne stated specifically that Mrs. McCormack was “my” agent and that the contract of sale had been submitted through her. He further testified that Mr. Zetlin told him that he did not wish the sale (via McCormack) to be disclosed to Scher, but that he (O’Dunne), nevertheless, informed her of the sale, apparently some time within the thirty day period which elapsed between the contract signing and the date of settlement. Freda Scher testified that Mr. Zetlin told her, prior to the date of settlement with McCormack, that he was withdrawing the property in question from sale since he was no longer interested in selling it and “just to forget it.” Scher further testified that she appeared at the settlement, intending to present her bill for commission, after being advised by O’Dunne as to the time and place thereof, but that O’Dunne and Zetlin both asked her not to hold up the settlement, in exchange for which they assured her that they would settle the commission with her later.

She acquiesced in this but no commission from Zetlin had been received as of the day of trial. Appellant testified that he had been introduced to Mrs. McCormack by O’Dunne and recalled that O’Dunne’s words of introduction were as follows: “Look, Mr. Zetlin, I have a lady that wants to buy this piece of property. I think you can make a better deal, myself. Would you accept $26,500?” Except for an opinion, expressed at the conclusion of his direct testimony, that Mrs. McCormack was definitely the purchaser of the property, Zetlin’s testimony differs only slightly from that of O’Dunne and Scher, who preceded him on the witness stand.

At no point in the trial was he asked to either affirm or negate the testimony, of the prior two witnesses, to the effect that he had tried to hide the fact of the sale from his broker, Scher, or that he had promised on the date of settlement to* settle with her in regard to her commission if she would let the