Simon v. Magaziner

Opinion by Trexler, J., Judgment was entered for want of a sufficient affidavit of defense. The plaintiff’s statement avers that she was a real estate broker, and had in her hands for sale a certain property of the defendants. Through her efforts, there was an agreement of sale made in which Bessie Githens, agreed to sell to Albert B. Mills, the property for the sum of $32,000‘. To this agreement, there was added a memorandum, which reads: “We hereby approve the above contract dated March 31st, 1925, .and for these services will pay Caroline F. Simon a commission of $2,000, or if settlement is not made by buyer we will pay C. F. Simon $500 for services. Bessie Githens, Lillian M. Maeder, Louis Magaziner.” Bessie Githens was merely a figure-head to carry the title, the defendants being the equitable owners. This suit is brought to recover the $2,000 due the plaintiff, less credits. The affidavit of defense states (1) That Bessie Githens alone was bound to pay the $2,000 and the defendants disclaimed any liability for that amount and (2) that at the time of the signing of the agreement of sale by Bessie Githens, the plaintiff orally represented to the said Bessie Githens that half of the sum of $2,000 wias to be paid to Albert B. Mills, the purchaser. By supplementary affidavit filed, it is stated that when the contract was made, Bessie Gith *563 ens was acting for the defendants as their agent and that the defendants were the real parties interested, .and that the plaintiff knew it. It will be noticed that in one respect the supplemental affidavit changes the defense in a material respect, without any reason being given for such a change of front. This is a serious omission. Elzea v. Brown, 59 Pa. Superior Ct. 403. The lower court properly decided that the note appended to the contract of sale plainly binds the defendants to pay the $2,000. To say that one of the defendants signed the note as a mere witness is not plausible. He gives no reason why he did not designate himself as a witness. As said by the lower court, the use of the pronoun “we” very plainly indicated there was more than one person to be bound. In fact, the specific purpose of the memorandum would seem to be to bind the defendants, rather than the agent, so far as this contract of sale was concerned, for the agent, Miss Grithens, had already signed the contract of sale, and any further approval by her was unnecessary. Evidently, the purpose of the post-script was two-fold, as far as the defendants were concerned. First, it was a ratification by the principals of the act of the agent; Second, it bound them, together with the legal owner, to pay the commissions to the person who made the sale and who was not a party to the contract of sale. As to the defense that Bessie Grithens was induced to fix the compensation of the plaintiff by false representation, it may well be argued, as pointed out in the opinion of the lower court, that the plaintiff’s services were to be paid for because she negotiated the sale of the property, and that the defendants were not concerned as to what she would do with the money, and therefore, the false statement was Immaterial. But there is another reason why the defendants cannot take advantage of this, for there is no allegation that Magaziner, the defendant who was acting in the matter, was in *564 chiced to sign the contract by any false statement of the plaintiff. It is no where asserted that the plaintiff’s statement, in relation to the division of her commissions, was made to him, or that it was ever communicated to him by Bessie Githens, or in any way influenced his actions. The assignment of error is overruled and the judgment is affirmed.