Conford, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
Plaintiff appeals from a final judgment entered in favor of defendants after a trial without a jury.
Plaintiff, a duly licensed real estate broker, seeks to recover a $12,000 commission which he claims is due him from defendants because he allegedly produced a tenant ready, willing and able to enter into a lease of premises owned by defendants and upon terms originally satisfactory to them.
Defendants deny plaintiff's right to recovery on the ground that they had no agreement with the plaintiff as an agent other than a non-exclusive proposal that if plaintiff or any other broker produced a tenant with whom defendants actually closed a lease transaction and received rent, such broker would be paid a commission on any installment of rent received; and that since no such lease was ever executed with plaintiff's prospect, defendants are not liable, regardless of the reason why the lease was not executed.
Defendants are the owners of a one-story warehouse-type structure located in Saddle Brook. Joseph Ettore, a real estate agent employed by plaintiff, had rented the premises for defendants prior to March 1957 to Viking Sloane Company. That tenant failed to pay the rental reserved in its lease. Defendant Frank Posluszny, prior to the vacation
of the premises by Viking Sloane Company, sought a new tenant through the medium of newspaper advertisements.
The testimony of Ettore and Frank Posluszny concerning the oral listing of premises by defendants for rental is in sharp conflict. Ettore testified that he received a telephone call from Frank Posluszny in March 1957. During the conversation which ensued, Frank Posluszny stated:
"'Joe, I am going to take the building over, and I want to lease the building, that portion which was leased to Viking Sloane, plus an addition that I am building in the rear of approximately 12,000 square feet. You have in all around 34,000 square feet more or less,' and he says, 'You are very familiar with it, and I want your office to get me another tenant.'"
Frank Posluszny, on the other hand, testified that Ettore contacted him, seeking an exclusive agency for the rental of the premises. Frank Posluszny testified:
"Q. Now, does that complete your recollection of your conversation on that occasion? A. No. Mr. Ettore asked me if he can get a listing on this, or an exclusive, or an agreement. Q. What did you say to him? A. I told him, 'Joe, Mr. Ettore, I had one written agreement with you. Now I am advertising in the paper. I am going to have a free for all. In other words, like an open listing. I'm not giving any exclusive or agreement to anybody. Whoever the agent or real estate man brings a tenant and the lease is signed, and I get my rent, he will get a check monthly off me.'"
Ettore admits that Frank Posluszny refused to execute a written exclusive agency agreement.
In any event, Ettore interested Elkay Products Co., a manufacturing firm, in renting the premises. After various visits to the property, Elkay, through two of its officers (the Pillar brothers) and a New York attorney named Roth, presented a check to Posluszny on May 2, 1957 in the amount of $1,000 as a deposit on account of rental of the premises. The following legend was endorsed thereon: "subject to all other agreements and signing of lease." The parties thereupon repaired to the office of ...