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Weinstein v. Weinstein

Decided: November 8, 1950.

HERMAN WEINSTEIN, INDIVIDUALLY AND TRADING AS MERIT REALTY CO., PLAINTIFF-APPELLANT,
v.
MATTHEW WEINSTEIN, DEFENDANT-RESPONDENT. HERMAN WEINSTEIN, TRADING AS MERIT REALTY CO., PLAINTIFF-APPELLANT, V. MATTHEW LOIBL, DEFENDANT-RESPONDENT



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by McGeehan, S.j.a.d.

Mcgeehan

The plaintiff, a real estate and business broker, sued defendant Matthew Weinstein for brokerage commissions on the sale to Matthew Loibl of Matthew Weinstein's liquor store business located at 275 Main Street, Hackensack, and sued defendant Loibl for breach of contract. Motions for involuntary dismissal made at the end of plaintiff's case were granted and plaintiff appeals from the judgments entered thereon.

It was stipulated that, prior to November 22, 1948, the defendant Weinstein had promised the plaintiff a commission of ten per cent if he produced somebody to purchase the defendant's business, and that defendant Loibl purchased the business from defendant Weinstein for $18,750 in February, 1949. Burchill, a salesman for plaintiff, testified that defendant Loibl came to plaintiff's place of business on November 22, 1948, to inquire about the various liquor store businesses advertised by the plaintiff; that after discussion, he gave Loibl particulars of two or three places, including the Weinstein liquor store; and that Loibl then signed an agreement, which provided:

"* * * In consideration of services rendered and confidential information given to me by Merit Realty Co. as to the businesses or properties mentioned herein and entrusted to me as a prospective buyer, I hereby agree not to conclude any sale, or give a deposit, or take possession of, or have any interest whatsoever in any of the businesses or properties mentioned, without first informing Merit Realty Co., and further to make provision for the full payment of ten per cent of the purchase price as commission to be paid by seller. Should I fail to comply with any of the terms of this agreement, I shall be liable to Merit Realty Co. for the full commission which they would have earned from the seller.

"The undersigned hereby acknowledges a receipt of a copy of this agreement, and further agrees to recognize Merit Realty Co. as the sole and only Broker, and that no sale shall be concluded until the commission in full Las been paid to Merit Realty Co.

"Properties or Businesses Submitted by Merit Realty Co.

"275 Main St., Hackensack * * *."

He testified, further, that he suggested to Loibl that they go and look at the stores, but Loibl insisted that he would like to go at his own leisure, and that it was arranged that Loibl was to do so and later get in touch with the plaintiff.

Loibl, who was called as a witness by the plaintiff, testified that on November 24, 1948, which was two days after the signing of the agreement, he visited the Weinstein liquor store at 275 Main Street, Hackensack, for the first time, and that he bought the store later. In cross-examination, Loibl testified that when he went to the Weinstein store on November 24th "Mr. Marks sent me there;" that Marks was a broker and "I bought a business from him before;" that he visited the store several times thereafter but always in company with Marks or one of Marks' associates; and that the closing in February, 1949, took place in the office of Marks. There was no proof that the plaintiff had ever communicated with the defendant Weinstein from the time Loibl signed the agreement on November 22, 1948, until the purchase by Loibl in February, 1949.

The court below granted the dismissal in the Matthew Weinstein case on the ground that there was conflict in the plaintiff's proofs on the question whether the plaintiff was the efficient and procuring cause of the sale; and granted a dismissal in the Loibl case on the ground that the agreement signed by Loibl was a contract of guaranty, and since there was no indebtedness from the defendant Weinstein, the case against Loibl fell.

The plaintiff argues two grounds for reversal: (1) the trial court erred in weighing the evidence, and (2) there was evidence from which the jury could find that plaintiff was ...


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