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Marchiondo v. Scheck

    Brief Fact Summary. Plaintiff brought suit herein to recover his broker’s fees, based on the fact that he had communicated Defendant’s offer to his client, and had received an acceptance, before Defendant revoked its offer.

    Synopsis of Rule of Law. This case stands for the proposition that an offer may not be revocable after performance has begun.

    Facts. The Defendant, Scheck (Defendant), made a written offer to sell property to a prospective buyer and to pay a commission to the broker of the sale. When he made the offer, the Defendant gave a six-day time period for acceptance. Before the sixth day, Defendant revoked his offer in writing. However, the Plaintiff, Marchiondo (Plaintiff), had already begun to perform on Defendant’s offer, by communicating the offer to its clients, who accepted Defendants offer on the same day it attempted to revoke said offer. Plaintiff brought suit herein to recover his broker’s fees, based on performance he rendered in reliance of Defendant’s offer. The trial court dismissed the matter, stating Plaintiff had not performed, based on the theory that a principal has a right to revoke a broker’s agency any time before the broker procures a purchaser. The Plaintiff appealed, based on the theory of partial performance.

    Issue. The underlying issue in this case is whether partial performance, rendered pursuant to an offer, has the effect of creating a binding agreement.

    Held. Reversed and Remanded.
    The court found that partial performance in response to an offer could render a contract enforceable. The caveat is that what constitutes partial performance is a question of fact and could vary from case to case. Consistent with this opinion, the case was remanded for a factual determination.

    Discussion. When considering whether an action has been done in furtherance of a contract, partial performance must be taken into consideration based on all relevant facts.


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