Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d. Jayne, J.A.D. (dissenting).
Plaintiff, a real estate broker, sued defendant in the Camden County District Court for brokerage commissions of $594 allegedly earned in connection with a sale made by defendant to Freihofer Baking Company of certain unimproved property. He recovered a judgment in the amount stated, and defendant appeals, relying on that section of the statute of frauds, N.J.S.A. 25:1-9, which deals with brokerage commissions.
The district court found that in fact defendant orally agreed to pay plaintiff a commission amounting to 10% of the sale price if the sale to Freihofer was effected; and, further, that immediately after the making of this agreement, plaintiff wrote the following letter to the defendant confirming it:
In accordance with our conversation, we have quoted a price of $7,400 for the easterly section (200 x 247.68) of your tract of land on the south side of Davis Road, east of the railroad, Magnolia,
New Jersey, to the Freihofer Baking Company. This is at the rate of $6,000 an acre, plus ten per cent sales commission.
The court also found that the plaintiff introduced Buff to Freihofer and "began their negotiations," which culminated in a sale and conveyance of the property to Freihofer for $5,940. Buff, though he received the above letter, never replied to it; nor did he, in any way prior to the sale, disavow its terms. Four and a half months after the letter, this action was started for $594, 10% of the $5,940.
Does the letter comply with the following portion of N.J.S.A. 25:1-9, particularly the words italicized below:
"Any broker or real estate agent selling or exchanging real estate pursuant to an oral agreement with the owner of such real estate, who shall actually effect such sale or exchange before such oral agreement shall have been repudiated or terminated by the owner in writing as hereinafter provided, may recover from such owner the amount of commission on such sale or exchange, if the broker or agent shall, within five days after the making of the oral agreement and prior to the actual sale or exchange of such real estate, serve upon the owner a notice in writing, setting forth the terms of the oral agreement and stating the rate or amount of commission to be paid thereunder, and if the owner shall not have repudiated or terminated the oral agreement prior to the actual sale or exchange of the real estate."
This statutory provision was authoritatively construed in Fontana v. Polish National Alliance, etc. , 130 N.J.L. 503 (E. & A. 1943):
"* * * For the broker to give notice that he has solicited a prospective purchaser and will be entitled to a named percentage on the sale price if that person should purchase, but not to state that the potential claim for compensation is based upon an oral agreement, is to omit the vital fact upon which the statutory proviso is conditioned; yet respondent argues, as under ...