On appeal from Superior Court, Law Division, Bergen County.
Halpern, Larner and King. The opinion of the court was delivered by Larner, J.A.D.
[159 NJSuper Page 547] This litigation involves claims arising out of the failure of a purchaser to consummate a contract to purchase a private home. The broker, Joseph J. Murphy Realty, Inc. (Murphy), brought an action against the seller Stagg and the purchasers Marvin J. Shervan and Louise S. Shervan, his wife (Shervan), to recover its commission of $7,500. Stagg sued Shervan on an $11,000 note which Shervan had delivered in connection with the purchase. And Shervan counterclaimed against Murphy alleging fraud in
inducing Shervan to enter into the contract to purchase the Stagg home and seeking damages measured by any judgment recovered by Stagg against Shervan.
The trial judge granted summary judgment in favor of Stagg on Murphy's affirmative claim, and the case proceeded to trial by jury on the remaining issues among the parties. By way of answers to special interrogatories in the case of Murphy v. Shervan the jury found that defendant did not breach the contract with Stagg. In the case of Stagg v. Shervan the jury found that defendant had breached the purchase contract and assessed damages in the sum of $11,000. On the counterclaim of Shervan against Murphy the jury found that Murphy fraudulently induced Shervan to enter into the contract with Stagg and awarded damages in the sum of $11,000. Murphy's motion for a new trial was denied and judgments were entered in harmony with the jury's findings.
Only Murphy appeals, attacking the judgment in favor of Shervan on Murphy's affirmative commission claim and the damage award on Shervan's counterclaim.
In connection with the commission claim Murphy points to several trial occurrences as grounds for reversal. In view of the basis of our decision to affirm the judgment in favor of Shervan on this phase of the litigation, it is unnecessary to consider the arguments advanced by the appellant.
The evidence is clear and incontrovertible that Shervan's failure to consummate the purchase was in utter good faith and resulted only because of financial inability to close. As Shervan informed Murphy throughout the transaction, he could not provide the funds to consummate the purchase unless he was able to sell his own home -- a goal which was never fulfilled.
Under such circumstances, where there is no evidence of wrongful conduct on the part of the purchaser, he is not liable to the broker for failing to consummate the purchase contract. This conclusion was reached by the Supreme Court
in Rothman Realty Corp. v. Bereck , 73 N.J. 590 (1977), which also involved an action by a broker against the purchaser of a home. As noted by Justice Schreiber in that case:
To imply an obligation on the part of a buyer that he will pay the broker a commission, even though the buyer has acted in good faith with every intendment of acquiring the premises, but is unavoidably through no fault of his own prevented from consummating the purchase, is unquestionably contrary to the buyer's expectable understanding when he engages the broker.
In a sense there has been no wrongdoing or default by the buyer. * * * These cases recognize that liability should not be imposed on the seller where he acts in good faith and his inability to perform is not related to any wrongful act or misconduct on his part. To the same effect see Blau v. Friedman , 26 ...