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Herzog v. Tidaback

Decided: March 29, 1961.

HARRY W. HERZOG AND MURIEL HERZOG, HIS WIFE, PLAINTIFFS,
v.
ANN R. TIDABACK (FORMERLY KNOWN AS ANN R. SCALERA) AND AUSTIN J. TIDABACK, HER HUSBAND, DEFENDANTS



Herbert, J.s.c.

Herbert

[67 NJSuper Page 15] The complaint seeks specific performance of an alleged contract by the defendants to sell a home in Plainfield, New Jersey to the plaintiffs. The defendants have moved for summary judgment on the sole ground that

the requirements of the statute of frauds have not been met. The affidavit in support of the motion is merely a verification of a copy of a listing agreement, dated January 20, 1961 and signed by the defendant wife (then Ann R. Scalera). This listing agreement is the standard printed form of the Plainfield Real Estate Board. The form was filled out by inserting the address of the house, considerable information about its physical features, the asking price of $39,500, and the name of John E. Vessler as the listing broker.

Aside from the listing agreement, the only other writing in the case at this stage is a check of the plaintiff Harry W. Herzog, dated February 11, 1961, drawn on the Plainfield Trust Company, and payable to the order of "Arthur C. Saunders Agency" in the sum of $1,975. This check is before the court as an exhibit attached to the affidavit of the plaintiff Muriel Herzog. The following typewritten notation appears on the check's face: "Deposit on property known as No. 1001 Sleepy Hollow Lane, Plainfield, New Jersey, in accordance with listing agreement." There is also a stamp indicating payment by the Plainfield Trust Company February 16, 1961.

The affidavit of the plaintiff Muriel Herzog, filed in response to defendants' motion for judgment, describes in considerable detail a meeting between the parties held at the defendants' home on February 9, 1961, and states that an oral agreement was reached at that time for the purchase and sale of the house at the price given in the listing agreement.

At the argument of the motion counsel for the defendants kept within the scope of the moving papers and concentrated upon the proposition that the listing agreement, plus an oral agreement to buy and sell, plus a check delivered on behalf of the plaintiffs to a real estate broker and accepted by him, would not satisfy the statute of frauds (R.S. 25:1-5(d)); and that the complaint should be dismissed and judgment entered for the defendants.

The defendant Ann R. Tidaback signed the listing agreement with the name "Ann R. Scalera." The agreement is dated January 20, 1961. By its terms it confers a "right to sell." The complaint and the affidavit filed to defend the motion describe her as Ann R. Tidaback or Mrs. Austin J. Tidaback, wife of the defendant Austin J. Tidaback. Apparently she married Dr. Tidaback between January 20, 1961 and the starting of suit, but this observation about the time of her marriage plays no part in the decision about to be stated. However, the fact that Austin J. Tidaback's name does not appear on the listing agreement, or on any other writing alleged by the plaintiffs or mentioned in plaintiffs' affidavit, makes it necessary to consider his position separately from that of his wife. The plaintiffs, of course, seek specific performance of an alleged contract to sell made by both Ann R. Tidaback (formerly Ann R. Scalera) and Austin J. Tidaback.

1. As to Ann R. Tidaback.

If the plaintiffs had alleged a contract to sell made by Ann R. Tidaback alone, the motion for summary judgment would be denied. This result is reached without ruling upon the interesting and possibly difficult question as to the standing of a broker's listing agreement as a writing which will or will not satisfy the statute of frauds. In passing, it may be noted, however, that there is some authority that such an agreement, standing alone, will not satisfy the statute of frauds. 49 Am. Jur., p. 708.

The complaint under attack alleges that Arthur C. Saunders, a member of the Plainfield Real Estate Board, was the agent of the defendants and that the payment of $1,975 was demanded by him as such agent and paid to and accepted by him in the same capacity. The affidavit of the plaintiff Muriel Herzog also avers that Mr. Saunders was the agent of the defendants, verifies the delivery of the check to him, its cashing by him, and supplies a copy of the check.

An agent who is acting under an oral authorization can furnish the memorandum which will bind a seller or buyer. National Home Builders, Inc. v. Stokem , 139 N.J. Eq. 167, 170 (Ch. 1946). In the present case the complaint alleges the agency of Saunders; this is verified by Mrs. Herzog's affidavit and the moving papers of the defendants make no attack upon the agency. For the purposes of this ...


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