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George H. Beckmann, Inc. v. (Zinke''s) Rainbow''s End

Decided: May 8, 1956.

GEORGE H. BECKMANN, INC., PLAINTIFF-APPELLANT,
v.
(ZINKE'S) RAINBOW'S END, INC., AND KERWIN VON HOFF AND FRED T. PORTER, DEFENDANTS-RESPONDENTS



Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

The fundamental rules and principles of law relative to a broker's right, if any, to commissions are so firmly established in our jurisprudence that the controversial issues of modern litigation in that field ordinarily concern the application of the acknowledged law to the facts of the particular case.

It is the basic legal rule that in the absence of some qualifying or oppugnant expression in the contract of employment, a broker who is duly engaged earns his commission when he procures for the owner a purchaser ready, able, and willing to comply with the terms specified in the authority thus conferred, or with other or different terms which, however, are satisfactory to the owner. Marschalk v. Weber , 11 N.J. Super. 16, 21 (App. Div. 1950), certification denied, 6 N.J. 569 (1951); Alnor Construction Co. v. Herchet , 10 N.J. 246, 253 (1952); Todiss v. Garruto , 34 N.J. Super. 333 (App. Div. 1955), certification denied, 18 N.J. 549 (1955), in all of which citations of the earlier decisions appear.

It must be recognized that the services of a broker merit compensation where he secures a buyer not necessarily on the terms originally propounded by the seller, but on terms ultimately settled by agreement between the seller and buyer. Steinberg v. Mindlin , 96 N.J.L. 206 (E. & A. 1921); Houston v. Siebert , 129 N.J.L. 468 (E. & A.

1943); Weinstein v. Weinstein , 10 N.J. Super. 68 (App. Div. 1950).

It is also to be realized that in the present action we are interested in two contractual obligations, the executed contract of sale between the vendor and vendee, and the agreement between the vendor and the broker.

Of the several terms and provisions of the April 26, 1954 contract of sale of the corporate defendant's restaurant and bar together with the parcel of real estate on which it was conducted at the corner of Tappan Road and Blanche Avenue, Norwood, Bergen County, for the purchase price of $60,000, the following is of present pertinency:

"Subject to * * * purchaser's accountant verifying a gross business of $70,000 for the year 1953."

Following the conclusion of the contract of sale is the brokerage agreement, to which VonHoff, the president, and Porter, the secretary of the corporate seller, subscribed their signatures. It reads:

"We agree to sell the above mentioned property at the above mentioned price and terms and agree to pay Geo. H. Beckmann, Inc., a commission of 7 1/2% of the selling price."

Upon an examination of the seller's business accounts the disclosure eventuated that the gross business for the year 1953 did not exceed $53,000, hence the purchaser declined to consummate the sale and the seller refused to pay the broker's commission.

The broker, the plaintiff herein, prosecuted the present action to recover its commission from the corporate seller, or in the alternative from the two individuals who personally signed the brokerage agreement without patently indicating that they did so as officers of the corporate owner, ...


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