Price, Gaulkin and Foley. The opinion of the court was delivered by Gaulkin, J.A.D.
Defendant appeals from a judgment of the Law Division in favor of the plaintiff in an action for real estate broker's commission.
Defendant (himself a real estate salesman) and his mother owned a house in Princeton. Defendant circularized plaintiff and other brokers offering the property for sale for $34,000 with a commission of 5%. In addition, defendant himself advertised the property for sale in newspapers.
Mildred C. Light, an employee of plaintiff, showed the property to Dr. and Mrs. Rosenhaupt. They offered $31,000, "contingent on contractor's estimate for necessary improvements," which defendant rejected.
On May 26 one Lear answered an advertisement, which defendant had placed in the New York Times , and inspected the premises. On May 27 defendant telephoned Mrs. Light and told her that Lear had offered $31,000 and asked her to see what the Rosenhaupts planned to do and to see whether she could "get the Rosenhaupts up." Early on May 28 defendant called Mrs. Light and told her that Lear was willing to pay $32,000 and inquired whether the Rosenhaupts would pay $34,000. She asked for time to communicate with them, saying she thought she would be able to get $34,000. At 10:12 A.M. Mrs. Light telephoned Mrs. Rosenhaupt and told her that if she wanted the house she "would have to come up with $34,000 and come up with it fast." However, in a conversation between defendant and Lear that commenced at 10:38 A.M. Lear offered $33,000 and defendant agreed to take it. At 10:50 A.M. Mrs. Rosenhaupt secured her husband's permission to bid $34,000 and notified Mrs.
Light in a telephone conversation which began at 11:05 A.M. Immediately thereafter Mrs. Light called defendant, who then told her that he and Lear had already agreed upon a sale for $33,000.
Defendant mailed a contract at 11:25 A.M. to Lear in New York. At 12:33 P.M. the $3,300 deposit agreed upon by Lear in the telephone conversation arrived in Princeton by telegraph. About 2 P.M. plaintiff prepared a contract to purchase defendant's property, obtained the signature of the Rosenhaupts, and thereafter tendered it with a deposit check of $3,400 to defendant, but the tender was refused. It is interesting, though not material, to note that thereafter Lear assigned his contract to the Rosenhaupts and the Rosenhaupts took title.
Plaintiff then instituted this action, which defendant defended upon the ground that prior to receipt of the Rosenhaupt offer he had sold the property to Lear. Plaintiff countered with the proposition that since the agreement with Lear had not been reduced to writing until after defendant knew of the Rosenhaupt offer, plaintiff was entitled to the commission. The court so held.
Plaintiff concedes that if a sale of the real estate is made by the owner to his own purchaser and there is not sufficient time between the sale by the owner and the broker's production of a buyer to notify the broker of the prior sale, then a broker situated as plaintiff is here is not entitled to any commission. 1 Corbin on Contracts §§ 50, 67 (1950); Romine v. Greene , 13 N.J. Super. 261, 265 (App. Div. 1951); see also Restatement, Agency 2 d § 106; § 435, comment (c); § 449; § 453, comment (d); cf. Rose v. Minis , 41 N.J. Super. 538, 543 (App. Div. 1956). Here it is apparent that the Thompson-Lear sale was "made so short a time before the broker's performance that reasonable opportunity to notify the broker was not afforded under the circumstances." Romine, supra , 13 N.J. Super. , at page 265.
Plaintiff's position appears to be that there was no "sale" here by defendant, within the meaning of this rule, because
defendant had not yet entered into a written agreement for sale when plaintiff told him the Rosenhaupts would pay $34,000. The trial court agreed with the proposition that a written contract is essential, and it was upon ...