On appeal from the Supreme Court, whose opinion is reported in 129 N.J.L. 581.
For the plaintiff-respondent, Feder & Rinzler (Jack Rinzler).
For the defendant-appellant, Aaron Heller and Aldon S. Patlen.
The opinion of the court was delivered by
CASE, J. The fundamental question is whether the writing from a real estate broker to an owner under R.S. 25:1-9 is a compliance with the statute unless it is so phrased as to put the owner on fair notice that an oral agreement is claimed.
The defendant is a fraternal organization. It owned and desired to sell a property in Garfield. Defendant published a newspaper which it sent to its members; and Mrs. Mary Myl who, with her husband, later bought the property testifies that, having received a copy, she read therein that the property was listed for sale; moreover, she lived in the neighborhood. In May of 1939, and at other times, Mrs. Myl, according to her testimony, made inquiry about the property, as a prospective purchaser, of Ignezey Kecmer, vice grandmaster of the defendant organization and its representative in charge of real estate in New Jersey, and of Antoni Rusyn, president of the Alliance and collector of its rentals; and so
did her husband, Martin Myl, according to his testimony. Both inquirers were given the information asked for and were informed of the asking price -- $11,500. Kecmer confirms this as to the inquiries made of him. Rusyn died after the events with which he was involved and before the trial. This (except Rusyn's death) was all prior to October, 1939.
In the latter part of October, 1939, the plaintiff, Thomas Fontana, a real estate broker, telephoned to Rusyn and asked him if the property was open for sale. He was told that it was. He asked for the price and the answer was "We're asking $11,500." On November 13th, 1939, Rusyn went by appointment to Fontana's office and was taken, without knowledge as to where he was to go or whom he was to see, to the Myl store and there again saw Mrs. Myl. He talked with her very briefly in the Polish language, which Fontana did not understand, and left the room. Fontana, on returning to his office, immediately wrote and posted by registered mail to the defendant corporation a letter reading as follows:
"This letter is with further reference to the sale of property at 122 Wood Street, corner Lanza Avenue, Garfield, N.J., in which case you have met the prospective purchaser, Mrs. M. Myls, on Monday afternoon, November 13, 1939. I wish to advise you that after you had left her store, she told me that she would be interested in talking business, sometime next week, as she wanted to take up the matter with her husband, first. The price I quoted her for the property is $11,500; the terms, of course, to be subject to your approval. Should Mrs. Myls call on you personally, you will know that this came about through my efforts. Should the above mentioned prospect purchase your property, I shall be entitled to the usual commission of five (5%) per cent. of the sale price."
That is the notice which is relied upon as being a compliance with the statute.
Fontana testifies that Rusyn said to him on the afternoon of November 13th, "You'll get your commission [viz., 5%] if these people purchase the property" and that several months later Rusyn told him to "keep away" from Mrs. Myl, that the ...