Collester, Lynch and Michels. The opinion of the court was delivered by Michels, J.A.D.
Plaintiff real estate broker appeals from a judgment rendered in the Essex County District Court on a jury verdict denying him recovery of a broker's commission and entering an award of $700 on defendants' counterclaim for return of their deposit and counsel fees incurred in defending the within action.
Plaintiff appeals, contending that (1) the trial judges erred in denying his motion for a directed verdict on the
complaint and the counterclaim; (2) the judge erred in overruling his objection to testimony as to the size of the property and the admissibility of a survey of the property, and (3) he erred in his charge to the jury as to the standard to be applied in determining whether defendant purchasers had a valid reason for not completing the contract, and in failing to charge the elements of fraud.
A careful review of the record establishes that the trial judge properly denied plaintiff's motion made at the end of the testimony offered by defendants in defense of the plaintiff's claim and in support of their counterclaim. The motion made by plaintiff would appear to be a motion for judgment under R. 4:40-1. Unfortunately, when plaintiff's counsel indicated that he wished to make a motion at the end of defendants' case, the trial judge advised counsel to "consider it as made and denied" and directed counsel to proceed with the evidence in defense of the counterclaim without arguing his motion. We are of the view that this practice should not be followed and urge trial judges to hear and consider the basis upon which motions are made and place on the record the reasons for their decisions. In spite of the fact that we do not condone the procedure followed by the trial judge, nevertheless we are of the view that the decision he reached was correct.
The judicial function upon a motion for judgment under R. 4:40-1 is the same as that governing the determination of a motion for involuntary dismissal under R. 4:37-2(b), that is, the judge must accept as true all the evidence which supports the position of the party defending against the motion and must accord it the benefit of all inferences which can reasonably and legitimately be deduced therefrom, and if reasonable minds could differ, the motion must be denied. See Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). Applying this criterion, reasonable minds could differ as to
whether plaintiff had misrepresented the size of the lot and the nature and quality of the rosewood panelling in the house, and as to whether plaintiff, through his agent and salesman Lyng, had failed to exercise due diligence in procuring a mortgage for defendants. Thus, clearly there were factual issues raised justifying or excusing the nonperformance of the contract by defendants and supporting their counterclaim which had to be resolved by a jury and could not be disposed of by motion under R. 4:40-1.
Plaintiff further contends that the trial court erred in permitting defendant Fred Silvan to testify as to the actual size of the property since he had not qualified in accordance with Evid. R. 19. We disagree. Silvan had personal knowledge of the matter, and his testimony was competent and relevant on the issue of the size of the property. The weight to be given to such testimony was for the jury -- the trier of the facts.
Plaintiff also contends that the trial court improperly admitted in evidence a survey of the property prepared by F. A. Brandes, L.S., and dated December 1966. The survey was marked in evidence as P-7 and apparently had been made for the Orange Savings Bank and New Jersey Realty Title Insurance Company. While undoubtedly the survey was accurate, nevertheless, the trial court erred in ...