Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
[37 NJSuper Page 470] This suit was brought by plaintiff to recover on its claim for brokerage services in connection with the sale of 22,500 shares representing 90% of the stock of the Perth Amboy National Bank at $90 a share, total $2,025,000. The Superior Court, Law Division, trying the case without a jury, found for the defendant. Plaintiff appeals.
Plaintiff, as broker, and defendant, as owner of the stock, orally came to an agreement to this effect: if plaintiff produced a purchaser satisfactory to defendant, defendant was to sell his stock to the purchaser at such amount over $80 a share as was agreed upon by the plaintiff and the purchaser; and defendant was then to bill the purchaser for this amount, remitting to plaintiff any moneys paid defendant over the $80. But -- and we conclude that this was in fact a part of the agreement between plaintiff and defendant -- defendant was to pay this overage to the plaintiff only if and when he collected the moneys.
Under this view of the contract, the case comes down to one issue: was plaintiff entitled to compensation as a result of the sale consummated January 22, 1954?
The principles of law involved here are fairly well settled. The Restatement of Agency , § 448(d) provides:
"Where a person employs only one broker to procure a customer, the broker ordinarily is entitled to his commission * * * if he causes a customer to negotiate with the principal and the customer makes a purchase without a substantial break in the ensuing negotiations."
See Tepperman v. Polster , 113 N.J.L. 14, 15 (E. & A. 1934): "there was never any breaking off of negotiations * * *. They continued negotiations, although the broker was not notified of the same." See also Houston v. Siebert , 129 N.J.L. 468, 474 (E. & A. 1943): "there was no breaking off of negotiations." Both cases distinguish Murray Apfelbaum, Inc. v. Bernstein , 104 N.J.L. 664 (E. & A. 1928) on this point. See further 2 Mechem, Agency (2 nd ed. 1914), p. 2023.
Defendant contends that plaintiff is entitled to no compensation because it did nothing toward the consummation of the sale after it had caused Bourne and the defendant to negotiate. But it was under no obligation to do more; it at no point abandoned the matter. To continue the above quotation taken from the Restatement of Agency , § 448(d):
"It is not necessary that the broker conduct the negotiation or even be an influential factor in persuading the customer to accept the terms * * *."
As had been said, the broker need take no part in the negotiations. Weinstein v. Clementsen , 20 N.J. Super. 367, 372 (App. Div. 1952). In accord, see Weinstein v. Weinstein , 10 N.J. Super. 68, 72 (App. Div. 1950); cf. Queen v. Jennings , 93 N.J.L. 353, 356 (Sup. Ct. 1919).
The rule is the same even though the broker's right to compensation is made conditional (as it is here) upon the customer's purchase of the stock and its payment of the price. In this case, as the Restatement of Agency , § 448(b) puts it:
"the [broker's] compensation is dependent upon the subsequent purchase but is not dependent on his ...