On appeal from the Essex Circuit Court.
For the appellant, Young & Shanley.
For the respondent, Boyd & Dodd (Ernest F. Keer, Jr., of counsel).
The opinion of the court was delivered by
PARKER, J. This is a broker's suit for commissions on the sale of real estate. There was a nonsuit in the trial court, and the sole ground of appeal is the granting of such nonsuit.
The complaint was in two counts: the first, based on a written authority stating the rate of commission; the second counting on an alleged oral agreement followed by written notice to the owner, as contemplated by chapter 273 of the laws of 1918. Pamph. L., p. 1020.
We conclude that the nonsuit was right. The written authority is to be found in two letters, which were put in evidence, and appear as schedules to the complaint. The first, from plaintiff to defendant, is dated April 15th, 1935, and the body of the letter is as follows:
"Confirming our various conversations, we have submitted and shown your building at Hoover Avenue (formerly Franklin Avenue) formerly owned by the Sprucolite Corporation to the Progressive Paper Box Company of 341-55 Jeliff Avenue, Newark, represented by Mr. Budde Schiffenhaus, Vice-President, and are now actively negotiating with them for the purchase of this property.
"As stated to you on the occasion of our first visit, our commission in case of a sale will be five per cent. of the purchase price.
"We will keep you fully advised as to our progress in these negotiations."
To which the defendant bank replied, April 17th, 1935:
"We are in receipt of your favor of the 15th instant, and have noted on our records that you have shown the Hoover Avenue property, formerly owned by the Sprucolite Corporation, to the Progressive Paper Box Company of Newark, and that you may ...