On appeal from a judgment of the County Court of Sussex County, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Ackerson, J.
The plaintiff sued to recover a commission for the sale of real estate. The case was tried before a jury in the Sussex County Court, Law Division, and resulted in a judgment of involuntary dismissal, on the defendant's motion, at the close of the plaintiff's case. From this judgment the plaintiff took an appeal to the Appellate Division of the Superior Court. That appeal has now been brought here on our own certification.
The claim to the commission is based upon an oral agreement alleged to have been made between the parties on September 7, 1946, and confirmed by a notice in writing to the defendant on September 9, 1946, pursuant to the requirement of R.S. 25:1-9, the pertinent part of which provides as follows:
"Any broker or real estate agent selling or exchanging real estate pursuant to an oral agreement with the owner of such real estate, who shall actually effect such sale or exchange before such oral agreement
shall have been repudiated or terminated by the owner in writing as hereinafter provided, may recover from such owner the amount of commission on such sale or exchange, if the broker or agent shall, within five days after the making of the oral agreement and prior to the actual sale or exchange 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 or exchange of the real estate."
"The notice provided for in this section shall be served either personally or by forwarding the same to the person to be served, by registered mail, to his last known post-office address."
The evidence produced on the plaintiff's case discloses that the defendant, Ethel Phillips, in the month of July, 1946, orally listed her property, known as "Cragmere," for sale with the plaintiff, Theodore Rossy, a licensed real estate broker, for $25,000 and at the same time gave him a key to the premises. He informed her that there would be a five per cent. brokerage commission on the price involved in the event of his effecting a sale.
Several prospective purchasers were taken by the plaintiff to view the premises and defendant was kept informed of his progress through frequent telephone calls and visits to plaintiff's office. He advised defendant of one offer of $21,000 which she refused because "she wanted to sell for about $25,000." Plaintiff had been active in selling the same property to defendant for $21,000 about three years before.
On Labor Day, 1946, the premises were shown to Doctor Ralph Ginter who made an offer of $24,500. Attempts to contact the defendant and inform her of the latest offer were unsuccessful until September 7, 1946, when she telephoned the plaintiff who then told her of the doctor's offer and advised her to take it. During this conversation plaintiff told the defendant that he was to receive five per cent. commission if she accepted the offer and she replied that she would accept the doctor's offer of $24,500. She was then informed that plaintiff would send her a letter confirming their understanding. Accordingly, on September 9, 1946, plaintiff forwarded to the defendant a registered letter confirming the agreement,
which letter, when presented to her, she refused to accept and it was returned, the envelope bearing a pencil notation, "Refused 9/11/46." Later, when asked by the plaintiff why she had refused to accept his registered letter, since she "knew ...