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Chapman v. Newmeyer

Decided: November 17, 1938.


On plaintiff's appeal from the District Court.

For the appellant, Heuser & Heuser (Ralph S. Heuser, of counsel).

For the respondent, Snyder, Roberts & Pillsbury.

Before Justices Trenchard, Parker and Perskie.


The opinion of the court was delivered by

PARKER, J. The suit is by an assignee of the claim in question.

The trial judge nonsuited after hearing plaintiff's evidence, and the appeal is from that nonsuit, the sole ground of appeal being that there was error in awarding such nonsuit.

The factual situation as developed by the evidence is substantially as follows:

The plaintiff's assignor, who for convenience will be called herein the plaintiff, and the defendant were both real estate brokers occupying the same office, but not in partnership, each acting independently of the other. The plaintiff had as a client a man named Austin Ely, who was the owner of a seventy-acre farm and wished to sell it. There was some incidental difficulty with the title, which was cleared upon foreclosure and sale made by the sheriff to George Ely. George Ely listed the property with the plaintiff for sale at the price of $1,100 notwithstanding the fact that plaintiff had told him that he, the plaintiff, had a buyer for thirty-five acres of the seventy for $1,000. It was obvious that plaintiff had the opportunity of a considerable profit by advancing the other $100 to George Ely, selling the thirty-five acres for [121 NJL Page 296] $1,000 to the purchaser, whose name was Kalmen, and holding the other thirty-five acres in reserve for sale to reimburse him for the $100 advanced and his profit on the transaction. But the plaintiff testified that he did not have the $100 and spoke of the matter to the defendant who, according to plaintiff's testimony, said that if the plaintiff could get the title to the other thirty-five acres for him, the defendant, he would pay the plaintiff half of the net proceeds of the sale thereof when made. All this appears to have been before the sale of the first thirty-five acres had been completed. The plaintiff saw Ely and told him about this arrangement. Ely expressed himself as satisfied, so the plaintiff reported to the defendant that the transaction could be carried out as proposed. It was therefore arranged that Ely was to execute two deeds, one to the plaintiff's purchaser, Kalmen, for $1,000, and the other to the defendant, who paid the other $100 and the cost of a survey. The $100 was raised by a note of the defendant endorsed by the plaintiff, though perhaps this is not material. It is also in evidence, though probably not material, except as a matter of evidence of the progress of the matter, that the other deed was in the name of the defendant as grantee, but that the name of the grantee was changed, allegedly with the consent of the grantor (and to avoid the expense of drawing and recording a second deed from defendant) to that of a purchaser for the other half, such purchaser having been secured by the plaintiff, his evidence being that he sold this other half to one Millich for $1,200. This sale was consummated, the deed delivered, and the money paid. Plaintiff was the moving cause of the sale to Millich. Assuming the truth of this evidence, as of course we must do on motion to nonsuit, it indicates the general situation that the defendant and plaintiff agreed that if plaintiff could procure the title of the second thirty-five acres for the defendant, the defendant would pay the plaintiff half the net proceeds of any subsequent sale thereof; that plaintiff did procure such title for the defendant at a cost, the total amount of which was disputed, but which, of course, included the extra $100 and the $25 for survey, and perhaps other items not now material;

that defendant sold the property acquired by him for $1,200; and the plaintiff's claim was for one-half the net excess of the proceeds of sale over the cost of acquisition.

It was in evidence that when defendant and Millich were negotiating with regard to the sale, Millich wanted three acres which plaintiff urged defendant to waive, plaintiff saying that defendant knew he wanted his money.

Millich, also called as a witness, said that defendant said to him that he was trying to settle with the plaintiff for $150 or $200; Millich testified also that defendant was pressing Millich for more cash on the ...

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