Conford, Collester and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.
Plaintiff, a real estate broker, appeals from the dismissal by the Law Division at the end of plaintiff's case, in an action tried to the court without a jury, of his complaint for commissions earned in procuring a purchaser for defendants' real estate. Defendants had refused to enter into a contract of sale with the proposed purchaser. The action of the trial court was based upon the alleged failure of plaintiff to inform defendants that the purchaser was an individual with whom plaintiff had a number of joint investments in real estate.
There must be a reversal for the reason that there was some testimony on plaintiff's case which, if believed, would have permitted the court to find that plaintiff made substantial revelation to defendants of his relationship with the purchaser. It is true that under R.R. 4:42-2(b) the trial
court was authorized, if it chose to do so, to decide the motion for involuntary dismissal at the end of plaintiff's case on its merits. But its remarks on granting the motion indicate that it was not purporting to find the facts against the plaintiff on the merits, but rather dealing with the motion as though the case were being tried before a jury. The court stated it was viewing the record "in its most favorable terms" to the plaintiff and not weighing the credibility or probative value of plaintiff's proofs but accepting them "all as true." On this approach, as will be demonstrated hereinafter, the plaintiff's proofs required a denial of the motion. Since the case must be retried, however, we will deal with another ground of reversal argued by plaintiff as well as with alternative grounds of affirmance advanced by defendants.
The following facts were developed on plaintiff's case. On June 11, 1963 plaintiff entered into a written, exclusive right-to-sell agreement with defendants for their 76-acre tract of land in Franklin Township for a period of 365 days. Sale was authorized at a price of $65,000, with terms specified. Commission was to be 10% of the sale price. In the agreement plaintiff undertook to advertise, offer and show the property for sale. Advertising was to be for a sale price of $70,000. Plaintiff advertised and showed the property to prospects, but without early success. Six to eight weeks later defendants sought an alteration of the agreement to fix the sale price at $80,000, but plaintiff refused. He did agree, however, to change the asking price to $80,000.
On April 22, 1964 one Dr. Abrams offered plaintiff $60,000, which was refused by defendants. On June 8, 1964 he offered $65,000. Again defendants refused. On or about June 8, 1964 plaintiff tendered defendants for execution Dr. Abrams' signed contract to purchase the property for $65,000, with terms as specified in the sales agreement. Dr. Abrams also deposited a $6,500 earnest-money check with plaintiff. Defendants rejected the contract. There was proof from which it could have been found that defendants at that time were
resolved not to sell the property to anyone for $65,000, being satisfied that it was worth more.
As of the time of Dr. Abrams' offers, he and plaintiff jointly held three or four tracts of land which they had purchased for speculative purposes, and they were both stockholders, along with a number of other investors, in an active real estate investment corporation of which they were officers and directors. Plaintiff testified that when he was negotiating the brokerage agreement with defendants he informed them of his purchase with Dr. Abrams of a nearby tract, as the price was relevant to the question of the price to be fixed for the subject property. He gave equivocal testimony as to whether he told defendants about his other land investments with Dr. Abrams at the time the latter submitted his offers, but on cross-examination by the court he testified:
"The Court: So, then, you say you did tell the Hoaglands that Dr. Abrams was interested in the property and that you and he had some prior business relationships or partnership arrangements in properties you had bought in the past?
The Witness [plaintiff]: Right.
The Court: And that he had ...