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Weinstein v. Clementsen

Decided: June 23, 1952.


Eastwood, Bigelow and Francis. The opinion of the court was delivered by Bigelow, J.A.D.


[20 NJSuper Page 369] The appellants are Nungesser and wife, who are the purchasers of a residence at Leonia, and Bunch, a real estate broker, who was paid a commission on the sale. Another real estate broker, the respondent Weinstein, recovered judgment against the appellants for $950. There

was a fourth defendant in the action, the vendor of the land, Mrs. Clementsen, but the judgment did not go against her and she takes no part in the appeal. The theory of the action was that the defendants had unlawfully interfered with plaintiff's business. These are the facts:

Mrs. Clementsen listed her property with both the brokers, Weinstein and Bunch, and set the price at $19,500. She agreed orally, though not by a writing, to pay the former a 5% commission. Whether she expressly agreed to pay a commission to Bunch, does not appear in the testimony.

On Monday, April 30, 1951, Mrs. Nungesser called at Weinstein's office and discussed the property with one of his employees. The same day, he took her to the property and introduced her to Mrs. Clementsen. And in the evening Mrs. Nungesser went back to look at the house again, this time with her husband. Weinstein, or his staff, saw Nungesser on May 2 and Saturday, May 5. On the last occasion, Nungesser said he was willing to pay $18,500 for the property -- namely, $1,000 less than Mrs. Clementsen's asking price -- and that he would give to the broker a check to be used as a deposit on the purchase price. Weinstein never submitted the Nungesser offer to Mrs. Clementsen; indeed, he never communicated with her after April 30.

When the other broker, Bunch, first discussed Mrs. Clementsen's property with the Nungessers, does not appear. But Monday evening, May 7, Bunch took them to see Mrs. Clementsen; the parties reached an agreement on a transfer for $19,000, and then and there signed a contract of sale. On that occasion, Mrs. Clementsen informed Bunch that Weinstein a week earlier had introduced the Nungessers to her as prospective purchasers and Bunch agreed to save her harmless from any claim Weinstein might make against her. Upon the consummation of the sale, Mrs. Clementsen paid Bunch a commission of $950, that is, 5% on the purchase price of $19,000.

On the above facts, the district court rendered its judgment for Weinstein.

We have carefully refrained from the introduction into our recital of words that might color the transaction -- conspire, entice, steal, unlawful, wrongful, malicious, and the like -- which are sprinkled so plentifully in some discussions of interference with business relations and which are so apt to becloud the judgment.

The plaintiff relies strongly on Louis Kamm, Inc., v. Flink , 113 N.J.L. 582; 99 A.L.R. 1 (E. & A. 1934), and Louis Schlesinger Co. v. Rice , 4 N.J. 169 (1950). The first of these cases decided that an owner of land who obtains from a broker the name of a likely purchaser, upon a promise to hold it in strict confidence and not to use the knowledge so gained to the injury of the broker, and then, ignoring the broker, negotiates a sale directly to the named purchaser, is guilty of a tort and liable to the broker for resulting damage. In the Schlesinger case, the plaintiff had a contract with a landowner for an exclusive agency for three months for the renting of the premises upon certain terms. The court held (1) that the owner breached the contract by entering into negotiations through another broker, within the three-months' period, even though the negotiations did not result in a binding contract or lease, until after the expiration of the three months; and (2) that a third party who induced the landlord to violate his engagement, was liable in damages. The subterfuge or bad faith was the essence of the wrong in the one action; the breach of contract in the other. As both elements are absent from the case before us, the two decisions cited are not immediately pertinent to the matter at hand.

We have mentioned that Mrs. Clementsen's promise to pay Weinstein a commission was oral and not in writing; it did not satisfy the statute of frauds. R.S. 25:1-9. But that circumstance, while it may be material to the amount of damages, does not impair the right of action in tort now asserted by Weinstein, for in an action against her on the contract for commissions Mrs. Clementsen might elect not to plead the statute. Louis Kamm, Inc., v. Flink, supra.

As a preliminary to a determination of the precise nature of the tort allegedly committed by the defendants, we will first consider whether Weinstein became entitled to a commission. A broker does not earn his commission by the mere introduction of a buyer to the owner, but he must be the efficient procuring cause of the contract between seller and purchaser. Murray Apfelbaum, Inc., v. Bernstein , 104 N.J.L. 664 (E. & A. 1928). But where the broker presents a prospective buyer and, on that basis, negotiations ensue, even though the broker takes no part in them, and a sale results, then ordinarily the broker is considered to be the efficient cause. Where there is real doubt, the question must be left to the jury. Queen v. Jennings , 93 N.J.L. 353 (Sup. Ct. 1919); Houston v. Siebert , 129 N.J.L. 468 (E. & A. 1943). The learned judge who tried the instant cause without a jury, found that Weinstein effected the contract. This presents a view of the facts rather more favorable to the plaintiff than is stated in the complaint, which does not aver that Weinstein was the efficient cause of the sale, but intimated the contrary by saying that if Mrs. Clementsen and Bunch had not interfered, Weinstein would have earned the commission. We have not a case of contradictory testimony but one of conflicting inferences -- psychological inferences. The evidence gives sufficient support to the trial court's conclusion, but it would also support a finding that Bunch, rather than Weinstein, was the ...

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