Opinion
Argued January 10, 1974.
Decided May 22, 1974.
Agency — Real estate broker — Representing seller and buyer — Conflict of interest — Necessity for consent to dual agency — Burden of proof.
1. In order for the sale of realty to withstand a subsequent challenge by the seller as to its validity, the burden is upon the buyer to prove by clear and satisfactory proof that the seller was timely informed of the broker's dual interest in the sale and consented thereto.
2. In this case, brought to set aside a sale of real estate, where it appeared that a real estate broker represented the seller for a commission with respect to a sale of the realty to a corporation in which the broker had a substantial interest, it was Held that the trial court's finding, that the buyer corporation had not established the seller's consent to the conflicting interests by "clear and satisfactory" proof, should not be disturbed on appeal.
Practice — Trial — Testimony of adverse witness — May be contradicted or impeached.
3. Generally, if a party calls an adverse party as a witness in a civil proceeding, this testimony is conclusive unless rebutted by other testimony. However, this is not so if the testimony of the adverse party is contradicted by the direct testimony of other witnesses, or is impeached by its own inconsistencies or by such intrinsic improbability or obvious falsity as to stamp it as unworthy of belief.
Mr. Chief Justice JONES concurred in the result.
Before JONES, C. J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appeal, No. 33, Jan. T., 1974, from decree of Court of Common Pleas of Chester County, No. 1992 of 1968, in case of John X. Kelly, Foreign Administrator, C. T. A. of the Estate of John A. Kelly v. Oxgrove Development Corporation. Decree affirmed.
Equity. Before GAWTHROP, P. J.
Adjudication and decree nisi filed by PITT, JR., J., finding in favor of plaintiff and against defendant; exceptions thereto by plaintiff sustained and exceptions by defendant sustained in part and final decree entered. Defendant appealed.
Fred T. Cadmus, III, with him Cadmus, Good and Patten Associates, for appellant.
Thomas R. Kimmel, for appellee.
This is an appeal from a final decree in equity entered in the trial court setting aside a sale of real estate. We affirm.
In the negotiations for the sale, the seller was represented by John J. Coyle, a duly licensed real estate broker, and Coyle received a commission for these services. The purchaser was the Oxgrove Development Corporation [Oxgrove], a recently formed corporation. The trial evidence established, and the trial court so found, that Coyle represented conflicting interests in the sale, in that he not only represented the seller but also was the owner of a substantial interest in Oxgrove, and that his interest in Oxgrove was not publicly disclosed, but was recorded in the name of a straw party. Under these facts, the law is clear that in order for the sale to withstand a subsequent challenge by the seller as to its validity, the burden is upon the buyer to prove by clear and satisfactory proof that the seller was timely informed of Coyle's dual interest in the sale and consented thereto. See Onorato v. Wissahickon Park, Inc., 430 Pa. 416, 244 A.2d 22 (1968). See also Warner Company v. MacMullen, 381 Pa. 22, 112 A.2d 74 (1955); Sarshik v. Fink, 292 Pa. 256, 141 A. 39 (1928), and Finch v. Conrade's Executor, 154 Pa. 326, 26 A. 368 (1893).
Instantly, Coyle was deposed pretrial and testified, in part, that prior to the sale he informed the seller of his dual interest in the transaction and that the seller consented thereto. This deposition was offered in evidence as part of the seller-plaintiff's case at trial, and it is argued that since it remained uncontradicted by any other testimony offered by the seller, it is binding upon the seller for the purposes of this litigation.
The seller had died and was, therefore, unavailable.
Generally, if a party calls an adverse party as a witness in a civil proceeding, this testimony is conclusive unless rebutted by other testimony. Guida v. Giller, 406 Pa. 111, 176 A.2d 903 (1962). However, this is not so if the testimony of the adverse party is contradicted by the direct testimony of other witnesses, or is impeached by its own inconsistencies or by such intrinsic improbability or obvious falsity as to stamp it as unworthy of belief. Argo v. Goodstein, 438 Pa. 468, 265 A.2d 783 (1970).
Herein, the trial court after consideration of Coyle's testimony as a whole, concluded it was not of the quality necessary to establish the seller knowingly and intelligently consented to Coyle's conflicting interests in the sale. After our study of Coyle's testimony, we are persuaded this conclusion should remain undisturbed. While Coyle testified he told the seller before the sale that he was to have a substantial ownership in Oxgrove, in the beginning of his depositions Coyle attempted to evade questions as to this interest and only after persistent inquiry admitted that the interest recorded in the name of his secretary was, in fact, owned by him. For this and other reasons disclosed in the record, the trial court was amply justified in concluding Coyle's testimony was not the "clear and satisfactory" proof required to carry the buyer's burden of proof in this case.
Decree affirmed. Costs on appellant.
Mr. Chief Justice JONES concurs in the result.