On appeal from the Supreme Court, Essex Circuit.
For the appellant, Merritt Lane.
For the respondent, Philip J. Schotland.
The opinion of the court was delivered by
BODINE, J. The defendant entered into a written agreement to pay the plaintiff brokerage commissions for procuring a tenant for a long term for certain premises in Perth Amboy. The United Stores Realty Company, a subsidiary of the United Cigar Stores Company, was produced as a proposed lessee. This lessee was acceptable to the defendant, and its
representative was furnished with the deed and a survey for the purpose of preparing a lease.
As it so often happens, the form of the lease was the subject-matter of considerable discussion. After the first draft was prepared several conferences were held, the defendant and the tenant each submitting points for agreement. On September 26th, 1925, the parties arranged for a final conference in New York preparatory to the preparation of the fourth draft of the lease. The defendant's son, a New York lawyer, together with a New Jersey lawyer, had been present at previous conferences, the defendant unable at the last minute to go to New York sent his son. The testimony indicates that every provision of the lease was gone over and every provision was agreed to save one, and that related to the rights of the respective parties in the event the property was condemned. Two clauses were drafted by the lessee. It was stated that either was satisfactory to it. The defendant's son stated that, in his opinion, either was sufficient, but that he would leave the final selection to his father and would report the following Monday. The conference took place on a Saturday. The defendant, however, made no selection, refused to proceed further, and leased the property to another, and has refused to pay the commissions called for in the contract and for which the plaintiff had judgment.
The case was tried on the theory that after the plaintiff had procured a tenant acceptable to the defendant, and the lease had been prepared and agreed to, the defendant refused to perform.
The case turns on whether there was sufficient evidence of the apparent authority of the defendant's son to justify sending the case to the jury. The trial court charged as follows: "Yet if it appear by what the father permitted his son to do, what he held him out as possessing authority to do, that he actually did give his son authority to bind him and to close this lease, then he would be bound by what his son said and did on this 26th day of September, 1925, because agency may be conferred in two ways. It may be conferred by express authority or it may be
conferred by a person in permitting another person to act in his behalf, sanctioning his acts in such a way as to indicate to the persons with whom he is dealing that that person has authority as his agent to bind him in that transaction."
In view of the evidence adduced the question was properly submitted to the jury. Law v. Stokes, 32 N.J.L. 249; J. Wiss & Sons Co. v. H.G. Vogel Co., 86 Id. 618; Heckel v. Cranford Golf Club, 97 Id. 538; White Door Bed Co. v. United States Mortgage Co., 106 Id. 372.
It is apparent from the testimony adduced that the proposed tenant was entirely satisfactory to the defendant at the time he turned over his title deed and the survey of the premises for the purpose of having the lease drawn. It is further apparent that the defendant discussed the form of the lease on two other occasions and that the understanding of the parties was reduced to substantially a written form. Only certain matters of phraseology remained for adjustment at the conference fixed for September 26th, 1925, in New York. The defendant's son was conversant with the matter and appeared instead of his father at the final conference, went over the matter in detail and approved of the questions under discussion. He now states that he was entirely lacking in authority and was obliged to report back to his father the outcome of the conference for approval. There might possibly be something in this ...