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Mina L. Smith Inc. v. Cyprus Industrial Minerals Co.

Decided: January 27, 1981.


On appeal from superior Court, Law Division, Mercer County.

Seidman, Antell and Lane. The opinion of the court was delivered by Seidman, P.J.A.D.


[178 NJSuper Page 10] Plaintiff Mina L. Smith, Inc., a realtor, brought suit against the seller and purchasers of a commercial property in Ewing Township, claiming to be entitled to commissions as the procuring cause for the sale. Three counts of the complaint pertained solely to the seller, Cyprus Industrial Minerals Company (Cyprus) and its vice-president, Thomas Kwasizur. They set forth causes of action for, respectively, alleged breach of contract, misrepresentation and malicious interference with plaintiff's prospective economic advantage. The fourth count, abandoned at trial, charged the purchasers, John N. Blazakis and Stamatis Golfinopoulos, with breach of an agreement to pay a finder's fee. The last count, which also included the spouses of these defendants, alleged that they had "knowingly, willingly and maliciously interfered with the contractual relationship of plaintiff and Cyprus Mines Corporation," causing plaintiff to lose "its earned fee for the sale." The trial judge, at the close of plaintiff's proofs, granted motions made on behalf of all defendants for judgment of involuntary dismissal. This appeal followed.

We are entirely satisfied that the trial judge correctly dismissed the complaint insofar as it related to the seller. Clearly, with respect to the first count, any agreement that may have been reached between the seller and plaintiff authorizing the latter to sell the real estate in question and providing for a commission did not comply with the statute of frauds, N.J.S.A. 25:1-9, and thus was unenforceable. It is uncontroverted that the broker's authority, if any, was not in writing signed by the owner or its authorized agent, nor was it recognized in a signed writing or memorandum either before or after the sale was effected. Furthermore, plaintiff's letter to the owner advising that it had shown the property to several persons, including defendant Blazakis, and expected to be paid a commission upon consummation of a sale, lease or option, was an ineffectual attempt to comply with the notice provision contained in the second paragraph of N.J.S.A. 25:1-9. The letter was not sent within five days after the making of the alleged oral agreement with the owner, nor did it set forth the terms of the agreement and the rate or amount of the commission to be paid, as required by the statute. See Fontana v. Polish National Alliance , 130 N.J.L. 503 (E. & A. 1943).

The record is devoid of any evidence to support plaintiff's theory of misrepresentation on the part of the seller, which is the subject matter of the second count. Plaintiff's reliance on the case of Louis Schlesinger Co. v. Wilson , 22 N.J. 576 (1956), is misplaced. The facts are inapposite. There, the alleged deceit by the seller was his failure to inform the broker at the time of the oral agreement that he had already given someone an option to purchase the property, thereby causing the broker to persist in its efforts to find a purchaser upon the representation that the owner stood ready to consummate a sale. Id. at 585. While plaintiff seeks to bolster its theory by a selective quotation from the opinion in the cited case, it ignores, however, the following significant passage:

Though clothed in the garb of alleged misrepresentation, the second count is a palpable attempt to circumvent the statute of frauds. In essence it charges that the seller made an oral agreement or representation to pay a commission but then failed to do so. Plaintiff may not accomplish indirectly that which it cannot do directly. Cf. McCann v. Biss , 65 N.J. 301 (1974).

Plaintiff does not complain on appeal of the dismissal of the third count. Its counsel acknowledged at trial that McCann v. Biss, supra , precluded the action against the seller for alleged tortious interference with plaintiff's prospective economic advantage.

We turn to the fifth count, which sought damages from the purchasers for alleged interference with a contractual relationship between plaintiff and the seller. Since we perceive no basis for disturbing the dismissal with respect to the purchasers' wives, we limit our discussion to the involvement of Blazakis and Golfinopoulos. The trial judge terminated the proceedings at the close of plaintiff's proofs by granting defendants' motions for involuntary dismissal. On such motion, the established test to be applied by a trial judge is

Viewed most favorably to plaintiff, there was evidence in this case from which a jury could have found these facts:

Plaintiff's representatives, having learned that the Cyprus property was available, met with Thomas Kwasizur, Cyprus' vice-president, viewed the property, conferred with Kwasizur and were informed by him that the property was for sale on an

open listing basis "at a price of a million dollars and a commission of 50 or 60 thousand dollars would be paid if the building were sold for a million dollars. In no event, not more than six percent . . . Not more than six percent of the million dollars." Plaintiff's president, Joseph Hayes, and other sales personnel went to work in an attempt to sell the property. They communicated with various research and development companies to ascertain if they were interested. One of the salesmen, Claude Chew, also telephoned a number of prospects, including Blazakis. He showed Blazakis the property on several occasions and introduced him to Kwasizur. According to Chew, Blazakis expressed an interest in the property early in March, but said he needed time "to put together a tenant," and suggested an option arrangement. On March 10, 1974 plaintiff sent Kwasizur the letter referred to above, advising of its expectancy "to be named Realtors of record and therefore be paid a commission" if a "sale, lease or option be consummated" with any of the persons, including Blazakis, to whom the property had been shown.

When Blazakis inquired of Kwasizur to whom an offer should be addressed, he was instructed to submit it directly. Although Blazakis stated that Kwasizur told him no broker was involved, Kwasizur's version of the conversation was that Blazakis was told the property was being sold on an open basis and no one had an exclusive listing. Chew advised Blazakis that his listing was an "all broker's protected situation," and that a commission would be paid by the sellers. Blazakis wrote to Kwasizur on March 11, 1974, on behalf of himself and his partner, defendant Golfinopoulos, that they were interested, and offered a deposit of $30,000. Blazakis and Kwasizur continued to negotiate directly with each other, although Blazakis "assumed" that plaintiff was "trying to promote a sale" when the property was shown. Kwasizur informed Blazakis and Golfinopoulos several times that plaintiff ...

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