Opinion
No. 16128.
Argued March 24, 1961.
Decided April 20, 1961.
Mr. Ewing Laporte, Washington, D.C., for appellant.
Mr. Mark P. Friedlander, Washington, D.C., with whom Messrs. Mark P. Friedlander, Jr., and Blaine P. Friedlander, Washington, D.C., were on the brief, for appellee.
Before WILBUR K. MILLER, Chief Judge, and FAHY and WASHINGTON, Circuit Judges.
Plaintiff, a real estate broker under contract with the defendant owner, secured a contract with a purchaser, which was accepted by defendant for sale of certain property, on terms, for $140,000. The contract of sale provided for compensation to plaintiff of a commission of five per cent. Not having received the commission plaintiff sued defendant for $7,000, and the case came on for trial before a jury. At the conclusion of plaintiff's evidence the court directed a verdict for defendant. We think this was error.
The printed form contract stated the commission to be "5% of ______," and the pretrial stipulation shows the amount thus left blank was $140,000.
Plaintiff's evidence was such as to make out a prima facie case for recovery of the commission notwithstanding it showed that the contract of sale was not consummated. Failure of consummation was not so clearly shown to have been due to the fault of the proposed purchaser as to warrant the court itself in deciding the case adversely to the broker on the ground of such failure.
We do not decide whether the procuring of the contract alone warranted recovery by plaintiff, or questions as to the manner in which the commission should become due or be paid. Further development of the facts may obviate the necessity for such decisions. At present we hold only that defendant should have been required to make its defense and that the case should be decided on the basis of all the evidence.
Reversed.