Ziswasser

This action arises from the sale of a retail liquor business. Sellers (plaintiffs) discovered, after the sale, that their broker, the defendant, had loaned its commission ($25,000) to the buyer for use as a portion of the down payment. In the sellers’ suit against the broker, the trial court concluded that the broker’s failure to disclose to the plaintiffs that the buyer was to borrow a portion of the down payment was a breach of the broker’s fiduciary duty. The court awarded judgment to plaintiffs in the amount of the broker’s commission. Defendant broker appeals.

We agree that the broker’s failure to disclose the loan was a breach of duty. However, the award of the $25,000 commission as damages was, under the facts of this case, in error, and the judgment must be reversed in order that the amount of damages, if any, caused by the breach of duty be properly determined.

Statement of Facts

On July 28, 1977, plaintiffs entered into a written agreement with defendant pursuant to which defendant agreed to find a buyer for plaintiffs’ liquor business and plaintiffs agreed to pay defendant a commission if a sale was completed.

Herbert Cook expressed an interest in acquiring…