Action by real estate agent against husband and wife for commission claimed for sale of poultry plant and by corporation against real estate agent for purchase price paid agent by purchaser of dwelling and contents less agent's commission. The Superior Court for Sussex County, Carey, J., held that evidence on motion for summary judgment presented issue of fact as to whether husband and wife, who were sole stockholders of corporation which owned poultry plant, who signed contract for sale of poultry plant but who raised defense of statute of frauds, had such a personal interest in the subject-matter as would justify a holding that they made promise to be personally and primarily responsible for commission.
Judgment in accordance with opinion.
[48 Del. 70] Robert W. Tunnell and Samuel R. Russell (of Tunnell & Tunnell), Georgetown, for Samuel Franklyn Woodcock.
[48 Del. 71] Stewart Lynch and Florence E. Freeman, of Wilmington, and Peter P. Zion, of Philadelphia, Pa., for Jacob and Leah Udell and Pine Forest Corp.
CAREY, J., sitting.
Cases heard on motions of the Udells and Pine Forest Corporation for summary judgment and Woodcock's motion for leave to file a second amended complaint.
These cases arose out of the same transaction and have been consolidated for present purposes. A recital of the facts is necessarily somewhat lengthy, although the area of dispute concerning them is rather small. The pleadings, depositions, affidavits and answers to interrogatories furnish the basis for the present motions.
Woodcock is a real estate agent who frequently sells property by way of public auction. Jacob and Leah Udell are husband and wife. At all times pertinent hereto, the two of them owned all the stock of Pine Forest Corporation. They likewise owned all the stock of Isaacs and Steen Poultry Co. and about 50% of the stock of Eagle Frosted Foods Corp. Mr. Udell was president of all three corporations. Early in June 1947, he spoke to Mr. Woodcock about selling at public auction a poultry plant in Georgetown. After some discussion, it was agreed that Woodcock would sell not only the poultry plant but also a business or store property in Frankford and a dwelling and its contents in Frankford. The legal title to the store property was in the name of Mr. and Mrs. Udell; the dwelling and contents were owned either by the Udells or by Pine Forest Corporation; the legal title to the poultry plant was in the name of Isaacs and Steen Poultry Co., although all equitable interest was apparently in Eagle Frosted Foods Corp. The legal title to this poultry plant was transferred to Eagle Frosted Foods a few days before the auction was actually held.
[48 Del. 72] On June 25, 1947, three contracts were executed under seal. They were prepared upon Woodcock's customary printed forms by a Mr. Johnson, who was then attorney for the Udells and the various corporations and who was also a stockholder and secretary of Eagle Frosted Foods Corp. Woodstock then took the papers to the home of the Udells where they were signed.
One contract is between ‘ Pine Forest Corporation, party of the first part and S. Franklyn Woodcock, party of the second part’ . It provides for the sale of both the dwelling and contents and the business property in Frankford for a commission of ten percent. It is signed by Pine Forest Corporation, Mr. and Mrs. Udell and Mr. Woodcock. The dwelling and contents were sold at auction on July 19, 1947, for $15,000, all of which was paid by the purchaser to Woodcock, who still holds it. The business property was sold at the same auction for $7,500. $2,500 of that purchase price was paid to Woodcock by the purchasers, and is still held by him. The remaining $5,000 has been attached by Woodcock in the hands of the purchasers as garnishees in Action No. 97.
Another contract, signed at the same time as the one above mentioned, is between Eagle Frosted Foods Corp. as party of the first part, and Mr. Woodcock as party of the second part. It is signed only by those
two parties. It provides for the sale of the poultry plant at public auction for a ...