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O''Neill v. Colonial Memorial Park Inc.

Decided: February 1, 1939.

JOHN V. O'NEILL, PLAINTIFF-APPELLEE,
v.
COLONIAL MEMORIAL PARK, INC., A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT



On appeal from the District Court of the city of Trenton.

For the defendant-appellant, David L. Smith (James S. Turp, of counsel).

For the plaintiff-appellant, Frank J. Backes.

Before Justices Trenchard, Parker and Perskie.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This is the appeal of the defendant below from a judgment entered in favor of the plaintiff.

The plaintiff, O'Neill, was employed by the Colonial Memorial Park, Inc., the defendant in the suit, as sales manager, and sued for his compensation therefor, as fixed by his oral employment agreement.

The defense at the trial was, and the sole pertinent ground of appeal here is, that the plaintiff was really a broker within the intendment of section 10 of the Statute of Frauds, and hence could not properly recover.

For reasons now to be stated we think that contention ill-founded.

Section 10 of the Statute of Frauds (R.S. 25:1-9) reads: "Except as herein otherwise provided, no broker or real estate

agent selling or exchanging real estate for or on account of the owner shall be entitled to any commission for any such sale or exchange, unless his authority therefor is in writing, signed by the owner or his authorized agent, or unless such authority is recognized in a writing or memorandum, signed by the owner or his authorized agent, either before or after such sale or exchange has been effected, and, in either case, the rate of commission on the dollar or the amount of the commission shall have been stated therein."

Now the state of demand sets up, and the evidence indicates without contradiction, that the plaintiff was not an outside agent, but an employe called an assistant sales manager, and that the principal part of his duty was to organize and supervise a sales force; that under his contract he was entitled to what is called overriding commissions of four per cent. on sales made by the sales force, and that this overriding commission was his ...


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