On appeal from the Essex County Court of Common Pleas.
For the plaintiff-respondent, Cruse, Becker & Longstreet (Howard R. Cruse and Alfred R. Becker).
For the defendant-appellant, Gilhooly & Yauch (Edward J. Gilhooly).
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. The appeal is from a judgment for the plaintiff entered on the striking of defendant's answer as sham.
The complaint alleged that the plaintiff was a licensed real estate broker and that in or about the month of October, 1944, plaintiff, as broker for the defendant, negotiated a lease for the premises at 371 Nye Avenue, Irvington, Essex County, to Francis J. McClenghan and Archie L. McCleneghan; that the lease contained an option for the purchase of the premises by the lessees at the sum of $15,000; that the defendant agreed to pay the plaintiff for her services a commission of five per centum on the purchase price if and when the sale was closed; that the sale was closed in or about the month of November, 1946; and that plaintiff sues for the commissions. The defendant answered with a general denial, appended to which were two separate defenses, first, that there was an agreement under which plaintiff was to be paid a commission in full for the services rendered by her in the amount of $500 and that such amount was paid in full settlement; second, that if there was a promise to pay the commissions as alleged, it was made on a Sunday and was, therefore, illegal and void. At the argument of the motion affidavits and documentary exhibits were produced on behalf of both the plaintiff and the defendant. The court, concluding that the answer was without merit and the defense without substance, struck the answer as sham and ordered summary judgment for the plaintiff in the amount of the claim.
The defendant owned the real estate in question and operated a tavern business thereon. On October 3d, 1944, he signed and gave to plaintiff what appears to have been a
real estate broker's printed form, and which is subject to the interpretation that it was an authority to sell the tavern business, and to lease or sell the premises. It contained various data, including the statement that the rental was to be $100, that the lease was to be for one year with an option beyond, that the rooms included were as there mentioned, that the "Price incl'd Brokers Commission $6,750.00 or any price to be agreed on -- and 5% -- on sale of building," and this clause:
"I * * * do hereby authorize Mrs. A. Ruth Conover * * * to offer for sale and accept deposit on the business as above described and agree to pay her a commission of $500.00 on Tax. business in cash on the gross consideration, out of the first moneys paid on any price accepted, if said business is sold to any person or persons who received the above information directly or indirectly through Mrs. A. Ruth Conover, her agents or affiliates."
On the reverse is this statement, also signed by ...