Clark v. Griffin

The opinion of the court was delivered by Black, J.

In this case a judgment of nonsuit was directed by the trial court. This is the only error assigned. The action was brought to recover commissions alleged to have been earned by the plaintiff for selling the Corey property on Broad street, in the city of' Elizabeth. The authorization for selling the property is contained in the following letter written by the owner to the plaintiff:

“My dear Mr. Clark:

“Your note received, this morning regarding the Corey building. I am asking one hundred and ten thousand dollars for the property, commission two and one-half per cent. The Mutual Benefit Life Insurance holds a mortgage of twentjr-four thousand dollars at five joer cent. I shall be glad *509 if you could sell the property; I would be glad for you if you could sell tlie property and get the commission. Tell your man to make me an offer. It is the finest piece and only desirable piece on Broad street. Trusting to bear from you soon again, believe me,

“Sincerely yours,

“Mes. C. II. Mattie J. Gumpra.

“April the eighth.

“If your party would like to talk to me, let me know and I will be glad to see them.”

Tlie trial court placed its ruling on the ground that the above writing did not comply with the statute of frauds (Pamph. L. 1911, p. 703; Comp. Stat., first supp., p. 141) ; that it was simply an expression of pleasure, in the event a sale was made and did not amount to an authorization to go ahead and make the sale, following the case of Heyman v. Stopper, 85 N. J. L. 128; 86 Id. 357. Suffice it for us to say, tlie writing under consideration differs in essential particulars from the writing in that case. There was no authority in the writing in that case for selling. No authorization to sell. The writing was addressed to no one. No authority of any broker was recognized. These elements, absent in that case, are all present in the writing under consideration. True, it does not use the word “authority,” used in the statute, but that is not necessary. The word “authority,” as used in the statute, means tlie power delegated by a principal to an agent. We think the writing satisfies the statute of frauds (Pamph. L. 1911, p. 703; Comp. Stat., first supp., p. 747), and a recovery may be had thereunder if the facts otherwise justify a recovery. The ruling of the trial court was error and the judgment entered therein must be reversed.

The case is somewhat like that of Longstreth v. Korb, 64 N. J. L. 112. In that case, the authority to sell was contained in a letter, as here.

Whether the plaintiff was the procuring or efficient cause of the sale? There being doubt upon that point, the doubt *510 must be solved by the jury, under proper instructions from the trial court. Vreeland v. Vetterlein, 33 N. J. L. 247; Queen v. Jennings, 93 Id. 353; Weeks v. Smith & Sons Co., 79 Id. 388; Hudson Real Estate Co. v. Bauer, 74 Id. 90.

-• It seems unnecessary to review the facts at any length, pointing out wherein there is a juty question on the point, whether the plaintiff was the procuring or efficient cause of the sale. But the respondent argues that there was not a jury question, even though the writing satisfies the statute of frauds. The testimony, in brief, shows the plaintiff, after receiving the writing, went to see a Mr. Abrams, who is a real estate dealer. They then went to see Mr. Hersch, the purchaser of the property. He told them to go and see his lawyer, Mr. Koestler, which they did. The plaintiff then showed Mr. Koestler the above writing, and they then made an appointment to meet Mrs. Griffin in Mr. Wilson’s office. The plaintiff then told her that Mr. Abrams had a buyer, a Mr. Hersch, for $90,000. Mrs. Griffin said she would not accept that amount, she wanted $95,000 in cash. There is more testimony in detail, but, subsequently to these negotiations, on September 10th, 1919, the property was conveyed by Mrs. Griffin to Louis F. Herscli and Herman Hersch, partners, for $93,000. The question, then, who was the procuring or efficient cause of the sale was a jury question.

The judgment of the Supreme Court is reversed, to the end that a venire de novo maj^ issue.

For ajfvrmamoe — None. For reversal — Ti-ib Ci-iaNCelloR, Chiee Justioe, Swayze, TRENCHARD, PARKER, BERGEN, MlNTÜRN, KaLISCH, BLACK, KatzenbaCH, Wi-iite, HeppeNI-ieimer, Williahs, JJ. 13.