Jacobs, Donges and Bigelow. The opinion of the court was delivered by Donges, J.A.D.
This is an appeal from a judgment entered in favor of the plaintiff in the Atlantic County District Court.
Plaintiff was engaged by the defendants as a real estate broker to produce a buyer for the defendants' apartment house for the sum of $28,000, upon which plaintiff was to receive a commission of 5%. Plaintiff subsequently found someone who was interested in buying the premises for $26,000. Defendants agreed to accept this offer provided plaintiff reduce its commission to $1,000. This plaintiff agreed to do.
On March 15, 1948, a written agreement of sale was entered into between defendants and the proposed buyers. This agreement contained the following clause:
"A commission of $1000.00 shall be paid to the Real Estate Exchange of Atlantic City upon title passing."
At the time of settlement a question arose as to the market-ability of title due to an easement vested in the United States Government. The buyers refused to accept title subject to this easement and final settlement did not take place.
As the parties were leaving the office of the title company, plaintiff's agent asked one of the defendants, "What about the commission due us?" One of the defendants answered, "Send me a bill." The defendants deny this conversation but the court found, as a fact, that the conversation took place.
Plaintiff mailed defendants a bill but defendants never did anything about it. Thereupon plaintiff instituted this suit in two counts, the first count "on account stated" and the second "on a book account."
The court entered a judgment for plaintiff in the sum of $1,000.
It is significant to note, at the outset, that the suit was not grounded on the writing incorporated in the agreement of sale between the defendants and the proposed buyers. Instead, it is grounded on an open account, the basis of which is the alleged oral promise of Mr. Lieberman, one of the defendants, after the broker had rendered his services. Such an oral promise is unenforceable by virtue of R.S. 25:1-9, which reads, in part, as follows:
"Except as herein otherwise provided, no broker or real estate agent selling or exchanging real estate for or on account of the owner shall be entitled to any commission for such sale or exchange, unless his authority therefor is in writing, signed by the owner or his authorized agent, or unless such authority is recognized in a writing or memorandum, signed by the owner or his authorized agent * * *."
The subsequent oral promise upon which plaintiff relies is entirely without consideration because ...