Landis v. Shapley

Opinion by Linn, J., Plaintiff and the four defendants all acting as parties of the first part, agreed in writing with one Kirssen, to sell him certain real estate for $19,500, of which $1,500 was payable to the plaintiff for the “surrender......of a certain agreement of purchase” of the same real estate, and $18,000 to the defendants who owned the property but had previously agreed to sell it by the agreement now [514] to be surrendered by the plaintiff, the purpose being to substitute one purchaser for another. After the agreement was performed by the conveyance to Kirssen, plaintiff brought this assumpsit against defendants, averring (a) the execution of the agreement to sell to Kirssen; (b) that when that written agreement was made, defendants “agreed by parol to pay the commissions of the real estate agents employed by the plaintiff”; (c) that defendants refused to pay any commission to an agent Mowery, whereupon plaintiff had paid it and now sought reimbursement. In their affidavit of defense, defendants admitted the written agreement of sale, but denied the oral agreement to pay the commissions. On that issue the parties went to trial. The plaintiff was nonsuited. A rule to take off the nonsuit was discharged, and she has appealed. She averred a promise by four, but her proof did not support her averment. According to the evidence, two of defendants were not connected with the alleged oral agreement; they were not present when she says it was made, and there is no evidence that those present acted for, or were authorized to act for, those absent; the only evidence in the case is to the contrary, for, while two of the defendants were present when the agreement of sale was written and aided in stating the terms to the scrivener, (the time when the oral agreement is said to have been made), the two defendants then present did not execute it on behalf of those absent. The absent defendants, for anything appearing in the evidence, had not previously agreed to those terms, may never have heard of them, and, certainly, were not bound until they subsequently signed the paper. That paper, as we have said, contains no promise to pay the commission. Why then should they be bound in such circumstances by alleged contemporaneous oral promises which they had not actually or apparently authorized in fact or subsequently ■ ratified? Evidence of a promise by two will not sustain , recovery against four, so as the record stood the nonsuit [515] wag proper: Cluck v. Lackey & Lackey, 78 Pa. Superior Ct. 100; Boltz v. Muehlhof, 37 Pa. Superior Ct. 375, 380. Tbe assignment of error is overruled and tbe judgment is affirmed.