On appeal from Camden County Court.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Wachenfeld and Burling. For affirmance -- None. The opinion of the court was delivered by Burling, J.
This is an appeal by the defendants from a judgment of the Camden County Court entered in favor of the plaintiff pursuant to a jury verdict. The appeal is addressed to the Superior Court, Appellate Division, but has been certified on our own motion.
The question involved is whether an agreement alleged by the plaintiff to have been made between the parties is within the prohibition of R.S. 45:15-1 et seq., and therefore illegal and void.
R.S. 45:15-1 provides that:
"No person shall engage either directly or indirectly in the business of a real estate broker or salesman, temporarily or otherwise, except as otherwise provided in this article, without being licensed so to do as hereinafter provided."
R.S. 45:15-3 provides that:
"A real estate broker, for the purposes of this article, is defined to be a person, firm or corporation who, for a fee, commission or other valuable consideration * * * offers or attempts to negotiate a loan secured or to be secured by a mortgage or other encumbrance upon * * * real estate for others."
R.S. 45:15-4 excludes persons of various statuses, not here involved, from the applicability of the Act.
R.S. 45:15-2 provides that:
"Any single act, transaction or sale shall constitute engaging in business within the meaning of this article."
At the close of the plaintiff's case a motion was made by the defendants for a dismissal of the complaint on the ground, which was pleaded in the defendants' answer as a separate defense, that the alleged contract contemplated the negotiation of a loan to be secured by a mortgage upon real estate for others and therefore was in contravention of the statute (R.S. 45:15-1 et seq.) since the plaintiff was not licensed as a real estate broker. The motion was denied; no reason was given for the action denying the motion but the colloquy between the court and attorney indicates that the trial court was of the opinion that the agreement did not come within the statute (R.S. 45:15-1 et seq.). At the conclusion of the entire case, the defendants' motion was renewed and again denied. The court's charge to the jury included a reading of that portion of the statute defining a real estate broker and an instruction that the jury should decide whether the plaintiff attempted to negotiate a mortgage ...