
    Benjamin CRIFASI, t/a B. Crifasi and Company, Appellant, v. Peter A. HARRIS and Sam A. Harris, Appellees.
    No. 2612.
    Municipal Court of Appeals for the District of Columbia.
    Submitted Aug. 1, 1960.
    Decided Aug. 25, 1960.
    Denis K. Lane, Washington, D. C., for appellant.
    Stanley Klavan and Frank E. Scrivener, Washington, D. C., for appellees.
    Before ROVER, Chief Judge, HOOD, Associate Judge, and CAYTON (Chief Judge, Retired) sitting by designation under Code, § ll-776(b).
   CAYTON, Acting Judge.

Plaintiffs sued Crifasi, their former real estate broker, for rent moneys collected and retained by him. His defense was that he had earned the money, over and above the usual broker’s fees, for services performed. The decision of the trial court was in favor of plaintiffs and is here for review.

Crifasi. had been engaged by plaintiffs to manage four store properties. This was under an oral agreement, by which his compensation was fixed at 5% of gross rent collections, for his services as broker in collecting rents, keeping the property in repair, disbursing tax and expense items and negotiating new leases. This arrangement continued for some ten years, and then plaintiffs terminated the employment. This was testified to by Crifasi, who was called as a witness by plaintiffs. He also testified that plaintiffs had authorized him in writing to charge tenants a fee for negotiating leases on the property, and that he did in fact collect a brokerage fee from one of the tenants. This was in addition to the percentage agreed to be payable by plaintiffs. Crifasi claimed that he was entitled to keep the moneys in his possession for procuring one lease, for “termination” of one lease, and for obtaining an option of still another. But at least once in his testimony he said it was agreed that plaintiffs were not to pay and did not at any time pay him anything more that the 5% agreed commission.

The trial judge found that plaintiffs had a right to terminate the agency when they did; that the broker was not entitled to claim commissions beyond the termination date; and that there was no agreement under which the broker could claim for other or additional services.

Counsel for Mr. Crifasi argues that the ageement between the parties was not express but implied, and that he was not limited to the 5% brokerage collection fee. The ready answer is that Crifasi’s own testimony was that his compensation was expressly fixed at 5%, for which he was “to collect the rents and manage the property, and whatever was necessary. * * * ” In view of this the trial judge properly ruled that the situation was governed by an express rather than an implied contract. See Roebling v. Anderson; 103 U.S.App.D.C. 237, 257 F.2d 615; Burgess v. Grooms, D.C.Mun.App., 81 A.2d 338; 17 C.J.S. Contracts § 3.

As to other errors assigned we find no merit.

Affirmed,  