On defendant's appeal from the Court of Common Pleas of Hudson County.
For the appellant, Insley, Vreeland & Decker.
For the respondents, Wall, Haight, Carey & Hartpence.
Before Gummere, Chief Justice, and Justices Parker and Case.
The opinion of the court was delivered by
PARKER, J. This is a brokers' suit for commissions on a sale of real estate. There was a written contract of sale between the seller and the purchaser, which contract contained the following clause for the benefit of the brokers as the "statutory recognition" of the authority of the brokers to make the sale:
"Twelfth: The seller agrees that William West and Frederick Forman are the brokers who brought about this sale and the seller agrees to pay the brokers' commission therefor, in the event that the title closes as herein provided, which commissions are in the sum of 4-1/5%."
The title did not close, apparently because it was not marketable, and was refused by the purchaser. Notwithstanding this, however, the brokers claimed their commission and the court held that they were entitled to it, refusing to nonsuit and closing the case with a direction of a verdict for the plaintiff. It is argued that there was error in refusing to nonsuit, but this error is not available because there was no exception to that ruling. However, there was an exception to the direction of a verdict after the defendant had rested without offering any evidence. It was argued in the court below that under the terms of the clause above quoted, the commission was only due in case title passed. The view taken by the court was that the restrictive clause was not binding upon the brokers unless they were parties to it; and the direction of a verdict appears to have been rested on that ground.
It appeared in the case, or at least the evidence seemed to indicate, that there was an original agreement to pay commissions without qualification, but the agreement was oral; and it was not claimed that the brokers had served any notice on the seller in protection of their rights under the amendment of 1918 to the tenth section of the statute of frauds. The respondents did not claim at the trial, and do not claim now, that if the twelfth clause in the contract of sale was all that they had to rely on they would be entitled to recover.
Our law reports for the last few years show a number of cases in which there was an attempt to make the payment of commissions conditional on the consummation of the sale by delivery and acceptance of a deed. In a majority of these cases, however, the restrictive clause in the written authority given to the broker went no farther than to state that the commission would be payable at a specified time, or at a
specified stage of the proceedings, generally on the delivery of the deed or the like; and in this class of cases the more recent view taken by our courts has been that such a clause would not deprive a broker of his right to the commission. For example, in Rauchwanger v. Katzin, 82 N.J.L. 339, the commission was "to be paid on day of settlement." The broker ...