On appeal from the Supreme Court.
For the plaintiff-appellee, Frank C. Scerbo.
For the defendant-appellant, Frederick Kentz.
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment of the Supreme Court, Morris Circuit, entered upon the verdict of a jury in favor of the plaintiff (hereafter also called Houston)
and against the defendant (hereafter also called "Siebert") in an action for broker's commissions for obtaining a buyer for the grocery business and a tenant for the store building owned by Siebert in Summit, New Jersey.
The grounds of defendant's appeal are that the trial court erred in refusing to grant a nonsuit and direct a verdict for defendant as requested by counsel for the defendant.
At the conclusion of plaintiff Houston's case, there was testimony to the effect that Houston was a real estate broker of Summit, New Jersey, and had entered into a verbal agreement with the defendant, Siebert, whereby Houston was to procure a tenant for the Siebert store at as near $500 per month as he could get and sell the stock, fixtures and business dollar for dollar at inventory and was to receive as compensation 5% of the gross rentals for the term of the lease and 5% of the price obtained for the stock, fixtures and business.
Houston interviewed various owners of general stores and brokers in New York and elsewhere and on September 29th, 1938, he wrote a letter to a Mr. Fred J. Muller, a representative of the Grand Union Company, to the effect that there was a grocery store in Summit (referring to Siebert's) on the market in an excellent condition which he though possibly he might be interested in and expressed the hope that he would hear from him at an early date.
Between this date and October 20th, 1938, Muller and another gentleman called on Houston and told him they were representing the Grand Union Company; that they were looking for a site for a store in Summit. They stated their requirements and Houston discussed with them the town in general and told them the best store he had was the Siebert store. Houston showed the store to them and they looked it over thoroughly, noting its location, surroundings, and traffic conditions. The three then went back to Houston's office and Muller asked what rental Siebert would take. Houston told him that Siebert had in mind something around $500 per month and sale at inventory of the goods, fixtures and business. Muller's comeback was, "Offer him $250," and Houston said, "I don't think that will do." Muller replied, "Offer it and see how you make out."
The next day Houston saw Siebert and told him that the representatives of the Grand Union Company had looked the store over and seemed much interested and had made a tentative offer of $250 per month rental. Siebert said that he wouldn't consider that and it would have to come higher. Houston said, "Yes, I know that." After further discussion Houston said, "Well, why don't you think it over for a ...