Black & Co. v. Barr

Opinion by Beaver, J., This is an appeal from the refusal of the court below to take off a nonsuit.' “ In testing the correctness of the court’s refusal to take off the nonsuit, the plaintiff, as in the case of judgment for defendant on demurrer to evidence, is entitled to the benefit of every fact and inference of fact which might have been fairly found by the jury or drawn by them from the evidence before them. In other words, the motion for a compulsory nonsuit necessarily implies an admission of every fact which might have been fairly found by the jury from plaintiff’s evidence :” Finch v. Conrade, 154 Pa. 326, and cases there cited. The reasons for entering the nonsuit and of the refusal to take it off are not given. If, however, it was based upon the grounds set forth by the defendant in his motion therefor, it rests upon false premises. The plaintiff’s testimony, as it was presented at the trial, disclosed the following facts: Defendant employed plaintiff to sell certain real estate at a minimum price of $65,000. Plaintiff secured a purchaser for that sum and communicated the fact to the defendant. This completed the transaction and the defendant was, therefore, liable to pay to the plaintiff the stipulated agent’s commission of two per cent: Clendenon v. Pancoast, 75 Pa. 213. The plaintiff’s duty, as the defendant’s agent, was done. His work was completed. The terms of his employment had been fully complied with. Instead of closing with the purchaser procured by the plaintiff, the defendant informed him that he controlled but six eighths of the entire property ; that two several eighths were held by other parties and that he must make terms with them separately. This he finally did, agreeing to pay an increased price and forego his commission thereon. After making arrangements for the two eighths at the increased price, he returned to the defendant and presented [101] the agreement or receipt given in evidence in which the price agreed to be paid was set forth as $65,000. The defendant inquired what had been paid to the holders of the two eighths. Plaintiff declined to answer but referred the defendant to the owners thereof. Defendant professed to know what had been paid to the holders of the other two eighths but expressed his willingness, in view of his verbal agreement, to sign the receipt or agreement for the sale, which he did. In view of these circumstances, what duty did the plaintiff owe to the defendant? He was not his agent as to the outstanding two eighths. Was it incumbent upon him to inform the defendant as to the special agreement with the other tenants in common ? He had been referred to them by the defendant and had been directed to make his own terms with them and, having done so, we cannot see that it was incumbent upon him to make known to the defendant what those terms were, particularly in view of the fact that the defendant professed to know what they were. We would not lessen in any degree the rule which requires the utmost good faith on the part of an agent in disclosing to his principal every fact which the principal ought of right to know. In this case, however, if the plaintiff’s testimony is to be believed, he was the party misled. He undertook to sell the whole of the property in question at the defendant’s own price. He found a purchaser at the price stipulated and was then informed that he could not make title therefor and was referred to the other tenants in common. This is not in any sense similar to Pratt v. Patterson, 112 Pa. 475, where there was not only concealment of price but actual misrepresentation as to the name of the purchaser. There was no misrepresentation here and no actual concealment, although the price agreed to be paid for the two eighths was at a sum greater than that mentioned in the written receipt or agreement. The conversation which took place at the signing of the agreement shows conclusively that the defendant was not in any way misled; that he knew that the other tenants in common were securing a price greater than that at which he stipulated to sell and, notwithstanding that fact, signed the agreement, remarking that he had given his word to sell at $65,000, and meant to keep his word. The defendant’s evidence may materially change the final aspect of the case but, upon the showing of the plaintiff, it seems to us [102] that he was entitled to go to the jury upon the question of his fulfillment of the terms of the original contract. It is not necessary to consider the various questions which may arise in the further trial of the case. We only decide now that, upon the plaintiff’s showing, the case should have gone to the jury. Judgment reversed and a procedendo awarded. Rice, P. J., and W. D. Porter, J., dissent. A dissenting opinion by Rice, P. J., appears on page 651.