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Marschalk v. Weber

Decided: December 20, 1950.

F. PAUL MARSCHALK, PLAINTIFF-APPELLANT,
v.
ANTHONY WEBER AND STELLA WEBER, DEFENDANTS-RESPONDENTS



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

The present appeal invites a consideration of a judgment of involuntary dismissal entered in this action in pursuance of the determination of the trial judge at the conclusion of the plaintiff's case.

It is evident that on July 13, 1949, the defendants executed a memorandum in writing granting sole and exclusive authority, for a period of three days from that date, to the plaintiff, a duly licensed real estate broker, to procure a purchaser for them of two contiguous parcels of land consisting of approximately eight acres in the City of Clifton, with the two dwellings situate thereon, for the price of $57,500, or "for any other price or on any other terms to which the seller may consent in writing * * *."

The writing also contains the following notable and significant terms:

"The seller agrees to pay the agent a commission of 5 per cent of the gross sale price in case said property or any portion is sold or exchanged by the agent, the seller, or any other person during the term of this contract."

"The seller agrees to assist and cooperate in such sale."

"Commission or commissions shall be earned when the agreement of sale is executed by the buyer and seller, said commission shall not be payable until the deed is delivered and the purchase price is paid in full when the same shall be due and payable.

"The seller represents that he has the legal right to sell said property, and that he can and will execute a sufficient instrument of conveyance."

It is elementary that in the consideration of a motion to nonsuit or its progeny, the motion to direct an involuntary dismissal of the action, all of the evidence which supports the alleged cause of action of the party against whom the motion is made must be accepted as true, and such party shall be accorded the evidential benefit of all the inferences that may logically and legitimately be deduced therefrom. Lipschitz v. New York & New Jersey Produce Corp. , 111 N.J.L. 392 (E. & A. 1933); Scarano v. Lindale , 121 N.J.L. 549 (E. & A. 1939); Schwartz v. Rothman , 1 N.J. 206 (1948); Fischetto Paper Mill Supply, Inc., v. Quigley Co., Inc. , 3 N.J. 149 (1949).

There was testimony from which the jury might have logically and legitimately inferred that on the evening of July 14, 1949, the plaintiff, through his salesman, submitted to the defendants a bona fide offer from the Rusmont Corporation, a corporation of New Jersey, to purchase the property designated in the agency agreement for the specified price, provided the defendants would also convey to the purchaser another parcel of approximately one-half acre in the same vicinity for the purchase price of $1,500.

The defendants sought time to consider and on the following evening, July 15, 1949, they orally expressed their approval of the proposed terms of the offer. The following morning a check of the Rusmont Corporation in the sum of $1,000 was delivered to and received by the defendants.

Monday afternoon, July 18, 1949, at the offices of the attorney of the defendants, was designated by mutual consent as the time and place for the execution of the agreement of sale. At the appointed time the defendants' attorney announced

that the transaction would not be consummated and he returned the check. The defendants themselves explained to the broker, "We have changed our minds. Of course, we will take care of you. Do not worry about it. We have changed our minds about selling."

It is immediately observed and indeed acknowledged that the written memorandum, in so far as it conferred exclusive authority upon the plaintiff to negotiate a sale of the particular real estate therein identified, was in conformity with the statute. R.S. 25:1-9. The history of the statute is briefly ...


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