Bennett v. Carlen

SHOEMAKER, J.

Defendant Charles Carlen appeals from a judgment for plaintiff Dorothy Bennett, in an action

[308]

to recover damages for breach of a contract to convey a leasehold interest in certain real property.

The record discloses that in June of 1959, defendant, as owner, listed the leasehold interest, furniture and fixtures of the Lincoln Hotel for sale with the real estate firm of D ’Orazi Investment Company. Under the lease, defendant was required to obtain the landlord’s consent to any assignment. On August 3, 1959, D’Orazi Investment Company presented defendant with an offer in the form of a deposit receipt and agreement of sale signed by the plaintiff. The document, dated August 3, 1959, provided that the purchase price for the leasehold interest, furniture and fixtures, was to be $25,500, of which sum the plaintiff had already deposited $1,000. A further provision, under the heading “Condition of Sale,” stated that “5 days from the above date are allowed for the Seller’s approval of this agreement and an additional 5 days to gain the Landlord’s acceptance of the Buyer as a lessee.” Upon receipt of the seller’s and landlord’s approvals, plaintiff was to increase her downpayment to $8,000. This additional cash consideration was to be paid to D’Orazi Investment Company for deposit to the account of the seller. Plaintiff was to take possession of the property ■ on August 15, 1959. Time was expressly made of the essence. Defendant signed the agreement on August 3, 1959.

On August 4, 1959, defendant went to the office of Hogan & Vest, the real estate brokers who represented the landlord. He informed Mr. Vest that he had received an offer from the plaintiff and requested that Mr. Vest contact the landlord and obtain his consent to a transfer of the lease. The remainder of the negotiations for the landlord’s consent appear to have been conducted by D ’Orazi Investment Company, acting on behalf of the defendant. Mr. D’Orazi testified that on August 5 or 6, his firm furnished Hogan & Vest with a financial statement on the plaintiff, and that he was thereafter informed that Hogan & Vest considered the plaintiff an acceptable tenant but were desirous of obtaining a commission of $1,000 for their services in obtaining the landlord’s consent to the assignment. Mr. Hogan testified that he had never actually contacted the landlord in regard to the assignment, but that he did inform D’Orazi Investment Company that he “could possibly” obtain the consent if he were paid part of their commission on the sale.