Clapp, Goldmann and Ewart. The opinion of the court was delivered by Goldmann, J.A.D.
Plaintiff, a licensed real estate broker of New Jersey, instituted an action in the Morris County District Court for a $500 commission allegedly due him under an exclusive sales listing agreement dated August 26, 1950. The agreement gave plaintiff the exclusive right "for five weeks from the date hereof, and thereafter until I shall have given Albert M. Maraziti ten days notice of termination in writing," to sell or exchange certain property owned by defendant. Defendant further agreed to pay plaintiff a commission of $500 on such sale or exchange "in case it is sold by him, me, or anyone else during the period herein mentioned." Defendant, without terminating plaintiff's agency, sold the property on March 26, 1951. He refused to pay the agreed commission.
Defendant filed no answer to the complaint but entered a general appearance. At the trial in the district court he interposed two defenses: (1) since plaintiff treated the agreement as an exclusive agency rather than an exclusive right to sell, defendant, as owner, did not relinquish his right to sell the property himself; and (2) the agreement contained no definite termination date, as provided by N.J.S.A. 45:15-17(f), and hence plaintiff is not entitled to the commission because he violated the provisions of that statute. Plaintiff objected to the introduction of the defenses because they were not formally pleaded by way of answer. He testified, the agreement was introduced in evidence, and the case submitted on an agreed set of facts and briefs. The court entered judgment of $500 and costs in plaintiff's favor, and defendant appeals. The first of the two defenses raised in the court below is not raised on this appeal. It was without merit; the agreement gave plaintiff the right to a $500 commission whether the property was sold by him, defendant or any one else.
Defendant contends here that the contract was "illegal and void ab initio " because it violated N.J.S.A. 45:15-17(f)
and was in contravention of public policy. The cited section, along with one other, was added to R.S. 45:15-17 by way of amendment in 1948. L. 1948, c. 155, § 2. (This section was amended in other respects by L. 1953, c. 229.) N.J.S.A. 45:15-17(f) provides that the New Jersey Real Estate Commission may revoke a real estate broker's license for
"(f) Failure to provide his client with a fully executed copy of any sole or exclusive sales listing contract at the time of execution thereof, and failure to specify therein a definite terminal date which terminal date shall not be subject to any qualifying terms or conditions."
Defendant argues that the agreement did not contain a definite terminal date without qualifying terms and conditions; that the statute attaches a penalty in such case, and therefore the agreement is void notwithstanding that the statute does not expressly pronounce it so.
We deal initially with plaintiff's contention that this defense has no standing because defendant failed to specially plead illegality in the trial court. He relies on R.R. 4:8-3 (formerly Rule 3:8-3), which is incorporated in the district court practice by R.R. 7:5-5, relating to the form of answers in that court. The argument is clearly unsound. R.R. 7:5-4 permits a defendant to defend by entering his appearance or by filing an answer. The rules do not make the filing of the answer compulsory. Defendant here chose not to file an answer, but did enter an appearance, thus apprising plaintiff of his intention to defend the action. If plaintiff was at all concerned as to what the defense might be, he could readily have ascertained it by resorting to the comprehensive discovery proceedings permitted by the rules, particularly R.R. 4:16-1 et seq. relating to depositions or R.R. 4:23-1 et seq. relating to interrogatories -- see R.R. 7:6-4 and 5, applicable to county district courts -- or even to the pretrial procedure permitted by R.R. 7:6-3 which may be invoked by motion. He could thereby have forced defendant to disclose his position. He did not do so.
Eventually defendant stated his defense at the outset of the hearing. The defense of illegality was a strictly legal one. Plaintiff objected to it and then took the stand and testified. It was then agreed to submit the case to the court on an agreed set of facts and briefs. This afforded plaintiff an opportunity to meet the defense and overcome it if he could.
Our district court practice was designed so as to render speedy and substantial justice to the large number of litigants who resort to that court for the determination of their claims. The rules reflect this consideration, for after considerable deliberation answers have not been required.
The first question for determination is whether there was a definite terminal date without qualifying terms or conditions, within the purview of N.J.S.A. 45:15-17(f). Our statute is in many respects similar to the California act relating to the grounds for the suspension or revocation of real estate brokers' licenses, Deering, California Codes, Business and Professions , § 10176, whose legislative history antedates ours which was first enacted in 1921. N.J.S.A. 45:15-17(f), imported into our law by the amendment of 1948 (L. 1948, c. 155, § 2), is similar to section 10176(f) of the California statute enacted in 1945 (Cal. Stats. 1945, c. 660, § 4). We may ...