On appeal from the Clifton District Court.
For the appellant, Aldon S. Patlen.
For the appellee, Feder & Rinzler.
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is a suit for commissions in effecting a sale of real estate. It is based upon an alleged oral agreement between plaintiff and defendant company. The basic question requiring decision in this case is whether the trial
judge erred, as claimed, in holding that plaintiff had properly established his asserted claim for commissions pursuant to the provisions of the second paragraph of our Statute of Frauds (N.J.S.A. 25:1-9), which provides:
"Any broker * * * selling * * * real estate pursuant to an oral agreement with the owner of such real estate, who shall actually effect such sale * * * before such oral agreement shall have been repudiated or terminated by the owner in writing * * * may recover from such owner the amount of commission on such sale * * * if the broker * * * shall, within five days after the making of the oral agreement and prior to the actual sale * * * of such real estate, serve upon the owner a notice in writing, setting forth the terms of the oral agreement and stating the rate or amount of commission to be paid thereunder, and if the owner shall not have repudiated or terminated the oral agreement prior to the actual sale * * * of the real estate." (Italics supplied.)
It was open to the trial judge, who sat without a jury, to find substantially the following facts from the record submitted: Plaintiff is a duly licensed real estate broker of this state. Defendant company was the owner of the property 122 Wood Street, Garfield, New Jersey. Plaintiff inquired orally and in writing from defendant company through its president whether this property was for sale and upon being advised that it was for sale at $11,500 wrote to the defendant company making an appointment for its president to call on plaintiff, at his offices, on November 13th, 1939, to meet plaintiff's prospective purchaser. Prior to introducing the prospective purchaser to the president of defendant company, the plaintiff made clear to him that he, plaintiff, "worked on a 5% commission" and he was told by the president not to worry about that, "You will get your commissions, if these people purchase the property," and that if the property was sold for less than the asking price of $11,500 the plaintiff would receive 5% of the sale price, whatever the "price was." Immediately thereafter plaintiff and the president of the defendant company called upon a Mary Myl, plaintiff's prospective purchaser. The sale was not consummated at that time
although the prospective purchaser made an offer and plaintiff was told to "continue working" and to see what he could do. Immediately after this conference the plaintiff sent the following letter, "by registered mail," to the "last known post-office address" of defendant company (fourth ...