On appeal from the Essex County Circuit Court.
For the plaintiff-respondent, Samuel Roessler.
For the defendants-appellants, William L. Greenbaum.
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. Defendants appeal from a judgment which was entered in the Essex County Circuit Court against them for $2,500 commissions on an unconsummated sale.
Plaintiff, a self-styled "business broker," sued to recover $2,500 on defendants' alleged oral employment of him to procure a purchaser for the defendants' business at the price of $20,000 for good will and trade fixtures, plus the inventory value of the stock of groceries, meats and liquors, at a compensation of ten per centum of the sale price, exclusive of the value of the stock of liquor; the value of the stock of meats, &c., being estimated by the defendants at $5,000. The complaint alleged the procurement of a prospective purchaser ready, willing and able to purchase on the named terms and the subsequent refusal of the defendants to consummate the deal.
Appellants' first point is that an agreement to lease and a leasehold interest represent an interest in land or real estate; a proposition which, standing alone, presents no issue.
The second point is that the transaction in this case involved an interest in land and the rental of real estate or the negotiation of a lease; and this also, in just those words, presents no issue, because the reference is indefinitely to "transaction" and not to the sale which plaintiff alleged he was employed to negotiate. Defendants were the owners of the real estate where the business was conducted; but the sale of the business did not per se entail the continuance of the business at that location. The prospective purchaser and the defendants, when brought together, did discuss the making of a lease; but plaintiff's testimony is that the use or leasing of the real estate had no part in his employment, that the sale he was engaged to negotiate was not conditioned upon and not comprehensive of the use of the real estate and that
he did not participate in the negotiations with respect thereto. Whatever substance there may be in this point is met by the discussion in the next paragraph.
Thirdly, appellants allege error in this portion of the court's charge:
"I might say for your information under the particular circumstances in this case that such an agreement, not being an agreement for the sale of real estate, does ...