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McCann v. Biss

Decided: June 25, 1974.

NELL MCCANN, INDIVIDUALLY AND T/A NELL MCCANN REALTY, PLAINTIFF-APPELLANT,
v.
STEVEN BISS AND JOAN BISS, DEFENDANTS-RESPONDENTS, AND ERNEST E. WUESTER AND ELAINE P. WUESTER, DEFENDANTS-RESPONDENTS



For affirmance -- Justices Jacobs, Hall, Sullivan, Pashman and Clifford and Judge Collester. For reversal -- None. The opinion of the Court was delivered by Hall, J.

Hall

In this suit in the Bergen County District Court the plaintiff, a real estate broker, sought to recover commissions on the sale of a residential property in West Milford, Passaic County, made directly by defendants Biss (sellers) to defendants Wuester (buyers). The broker did not have written authority from the sellers to sell the property nor did she serve upon them a so-called "five day notice" at any time after the alleged making of an oral agreement with them, as required by the special statute of frauds applicable to real estate commission agreements. N.J.S.A. 25:1-9.

Liability was attempted to be predicated upon various alternative contract and tort theories. Counts in the complaint against the sellers based on express contract and quantum meruit were properly dismissed on motion prior to trial by reason of the statute of frauds and no appeal was taken therefrom. A third count against the buyers claiming that, having solicited plaintiff's services to find a residence for them, they thereby "entered into an implied promise with the plaintiff" to complete the transaction through her "so that the plaintiff could earn her just commission from the sellers," was dismissed at the end of plaintiff's case. The fourth count, against both buyers and sellers, alleged that both "intentionally undertook acts, the results of which were to unjustifiably interfere with the plaintiff's lawful business opportunity to earn a commission for bringing the parties together," or, to phrase it as the trial court did, a claim that the parties, or either of them, wrongfully interfered with a reasonable expectancy of economic advantage or benefit on the part of the broker (a cause of action available in appropriate real estate brokerage matters since Louis Kamm, Inc. v. Flink, 113 N.J.L. 582 (E. & A. 1934)). This claim was left to the jury,*fn1 which returned a verdict in the approximate

amount of six per cent of the selling price only against the sellers, at the same time finding in favor of the buyers.

The sellers appealed the judgment against them and plaintiff cross-appealed from the dismissal of the implied contract claim against the buyers. Plaintiff took no appeal from the judgment resulting from the jury verdict for the buyers on the tortious interference count. The Appellate Division, in an unreported opinion, sustained the dismissal of the implied contract count and reversed the judgment against the sellers based on the tortious interference theory, holding that the sellers' motion for judgment*fn2 should have been granted. The cause was remanded to the trial court for the entry of final judgment in favor of the sellers. We granted the broker's petition for certification. 63 N.J. 582 (1973).

As the case thus comes to us, only two questions arise, both of which are legal and novel. First, whether a broker, who cannot recover a commission from a seller on a contract theory because of the statute of frauds, may avoid the statute and do so on the theory of tortious interference. Second, whether a buyer may be required to pay the commission on some theory of implied contract with the broker when the latter cannot recover from the seller.

The factual framework in which these questions arise is rather typical. As in so many commission cases where there is no writing employing the broker, the evidence was highly contradictory. The interested parties were the only witnesses, in many aspects their testimony was sparse and confusing, there was very little that could be said to be corroborative and it is exceedingly difficult to determine the full truth. We need not detail all the evidence; some salient features will suffice to sketch the picture. In early May 1971 the buyers came to plaintiff's office and told her saleslady they were interested in buying a home and solicited plaintiff's services in finding a suitable property. Their requirements were somewhat special; they needed a sizeable plot with considerable privacy in order to raise dogs without annoying neighbors. Plaintiff testified that she did not expect the buyers to pay anything for her services to them and that they were not told they would have to pay a commission; indeed, nothing was ever demanded from them until this suit was started.

In the latter part of May and early June the sellers advertised their home for sale in various area newspapers. As is so frequently the case, they were swarmed over by prospective buyers who wished to inspect the property and by brokers who sought authority to sell it. Some prospects came with brokers. There were so many they could not differentiate between them and they generally did not ask who the visitors were. The situation was probably made more confusing by the fact that Mrs. Biss worked day times seven days a week and Mr. Biss worked nights, so that they were infrequently both at home when callers arrived. It seems clear they wished to sell the property themselves and did not desire the services of a broker. Their testimony was that they did not authorize any broker to act for them. At most, it would seem they would sell to a buyer produced by a broker only if the offered price, exclusive of commission, met their figure. That figure was an asking amount of $37,500 and a bottom price of $36,900. This is borne out by the

$36,900 price at which these buyers ultimately purchased the property.

On the other hand, plaintiff's saleslady testified that she saw the sellers' advertisement on May 28, telephoned Mr. Biss and solicited authority to sell. She said he refused to enter into an "exclusive listing agreement," but did agree to an "open listing." (Mr. Biss denied this completely.) While the full nature of such an arrangement was not defined in the evidence, we gather it is prevalent in the real estate business and amounts to no more than an oral permission, not confirmed in any way, to the broker to seek and produce an acceptable buyer. Both plaintiff and ...


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