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Tobias v. Comco/America Inc.

Decided: May 16, 1984.

LILLIAN TOBIAS, AN INDIVIDUAL, T/A WAY COUNTRY PROPERTY, PLAINTIFF-APPELLANT,
v.
COMCO/AMERICA, INC., A NEW JERSEY CORPORATION, SMOKE RISE DEVELOPMENT CO., A NEW JERSEY CORPORATION, GEORGE BASTAMOV, AN INDIVIDUAL, ALEXANDER NEU, AN INDIVIDUAL, LAWRENCE WONG, AN INDIVIDUAL, SMOKE RISE REALTY COMPANY, A TRUST, MARK EAGLE, AN INDIVIDUAL, DEFENDANTS-RESPONDENTS



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. The opinion of the Court was delivered by Pollock, J.

Pollock

The narrow question presented on this appeal is whether plaintiff, a licensed real estate broker, can recover a commission under N.J.S.A. 45:15-3 when the salesman in her employ, her husband, was unlicensed at the time he performed substantial services leading to the sale that is the basis for the commission.

The trial court granted defendants' motion for summary judgment dismissing the complaint. The court held that the statute does not permit a licensed broker to recover a commission based on a sales contract that resulted largely from an unlicensed salesman's efforts. In an unreported decision, the Appellate Division affirmed.

We granted certification, 93 N.J. 277 (1983). We now hold that under the singular facts of this case the salesman acted in good faith and substantially complied with the statutory licensing requirements. The broker, therefore, may maintain an action for her commission. Consequently, we reverse the judgment of the Appellate Division and remand the matter to the trial court.

I

Because the matter is presented on defendants' motion for summary judgment, we assume the facts as asserted by plaintiff are true and give her the benefit of all inferences that may be drawn in her favor. R. 4:46-2; Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 61 (1980). Based on that assumption, the following facts emerge.

Plaintiff, Lillian Tobias, is a licensed New Jersey real estate broker trading under the name of Way Country Property, Scotch Plains, New Jersey. Her husband, Melvin Tobias, was a licensed New Jersey real estate salesman for twenty years until July 1978 when, because of a heart attack, he allowed his license to expire.

Defendants Alexander Neu and George Bastamov, principals of defendants Comco/America, Inc. (Comco) and Smoke Rise Development Co. (Development), first spoke to Mrs. Tobias in 1979. They sought her services in selling a tract of approximately 1555 acres, known as Smoke Rise, located in Kinnelon, New Jersey. The parties signed a commission agreement and Mrs. Tobias found a potential purchaser. For reasons not disclosed on the record, however, the sale was not consummated.

Still seeking to sell Smoke Rise, Bastamov and Neu spoke with Mrs. Tobias at her residence in Florida in February 1980. She asked her husband to renew his salesman's license so that he could become involved in the sale. In compliance with the statutory requirement for renewing his license, N.J.S.A. 45:15-9, Mr. Tobias mailed to the New Jersey Real Estate Commission (NJRC) on February 28, 1980 the completed application and a check in payment of the $20 application fee. The check was drawn on a rarely used account and was eventually dishonored because of insufficient funds.

One month later, during March 1980, Mr. and Mrs. Tobias began performing substantial services in connection with the sale of Smoke Rise. Mr. ...


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