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Myers v. Arcadio Inc.

Decided: March 23, 1962.


Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.


Plaintiff, a real estate broker, sued defendants, purchasers of property shown to them by plaintiff. The pretrial order described the action as one "based on the unlawful and tortious interference with the plaintiff's business as a real estate broker." The jury awarded plaintiff $2,820 (6% of the $47,000 sale price), and defendants appeal from the resulting judgment.

From the evidence, although disputed, the jury had the right to find the following to be the facts:

Defendant Nicholas Roselli asked plaintiff's employee Underhill to find land suitable for an automobile showroom for Arcadio, Inc., a Roselli family corporation. Underhill showed Roselli four properties currently listed with plaintiff, none of which suited Roselli. Plaintiff then gave Underhill more listings to show to defendants, among them a property owned by Serge Pizzi and another the property in question, owned by the "Estate of Alice Cronshey." The Cronshey property had been "multiple listed" in October 1956 with the Morris County Board of Realtors through another broker, and the listing had "expired" on April 19, 1957.

On July 16, 1959 Underhill showed Roselli the Pizzi property, but it was too small. He then showed him the Cronshey property on the other side of the street. There was a sign on a tree stating that the property was for sale and inviting the public to contact Charles Cronshey at a given telephone number, or to "consult your own broker." No one was about. The old house on the property was vacant, and Underhill and Roselli made no attempt to enter it. After looking over the land, Roselli said he was interested and asked Underhill to find out the price and other pertinent details.

That day or the next Underhill telephoned Mr. Cronshey, but he was out. He spoke to Mrs. Cronshey and made an appointment to see Mr. Cronshey the following evening, but could not keep it. On July 19 he spoke to Mr. Cronshey on the telephone. Cronshey told Underhill the property was still for sale at $55,000, and that a commission of 6% would be paid. Underhill told Cronshey he had a prospect, but he did not tell him who it was.

On July 20 Underhill told Roselli "that the property was being offered at $55,000, that the property was available for sale. I gave him the dimensions of the property. Information that it was in a business zone and that a showroom would be allowed at this property." Underhill asked Roselli for an offer, and Roselli answered "that he would

have to get an offer from his father and his father would have to look it over, because he was the one that had the money and he would ultimately decide on what property they would buy." A day or two later Underhill asked Roselli if his father had looked at the property, and Roselli said he had not. Roselli, said Underhill, "put me off."

About a week later, or early in August, Underhill again asked Roselli for an offer. This time Roselli answered "he didn't think that his father would be interested in that and just to drop it." On August 12 Underhill told Roselli "I thought he should make an offer on this property. That I had a feeling that someone else would pick it up * * *" and Roselli answered "Forget about the whole thing. We are not at all interested in it."

During this period Underhill had made two more appointments to meet Mr. Cronshey but did not keep them, apparently because of other more promising engagements, since he had no offer from defendants or even an indication that they were really interested in the property. However, during all this time defendants had been secretly negotiating directly with Mr. Cronshey for the purchase of the property through one Goodman, a broker friend of defendants. Cronshey did not know defendants had been shown the property by Underhill. Indeed, Cronshey apparently did not know he was selling to defendants, for the contract finally signed named Goodman and his wife as the buyers.

The Cronshey-Goodman contract was signed August 20. The price was $47,000, the seller to pay no commission. The contract was thereafter assigned to the corporate defendant and title closed September 23. Defendants claim they paid Goodman $3,000 commission for his services. It was not until March 1960 that plaintiff learned that Arcadio had purchased the property. Plaintiff first demanded a commission from ...

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