617 F.2d 992 (3rd Cir. 1980), 79-1719, Small v. Seldows Stationery

Docket Nº:79-1719.
Citation:617 F.2d 992
Party Name:Sidney P. SMALL and William Landesman, d/b/a Small & Landesman, Appellants, v. SELDOWS STATIONERY, Jack Belowitz, Irving Platt and Irwin Katz.
Case Date:March 21, 1980
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 992

617 F.2d 992 (3rd Cir. 1980)

Sidney P. SMALL and William Landesman, d/b/a Small &

Landesman, Appellants,

v.

SELDOWS STATIONERY, Jack Belowitz, Irving Platt and Irwin Katz.

No. 79-1719.

United States Court of Appeals, Third Circuit

March 21, 1980

Argued Jan. 7, 1980.

Page 993

Manya L. Kamerling (argued), Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, Pa., for appellants.

Marc J. Bressler (argued), Bressler & Blaustein, P.A., Metuchen, N. J., for appellees.

Before SEITZ, Chief Judge, and ADAMS and WEIS, Circuit Judges.

OPINION

SEITZ, Chief Judge.

This is an appeal from a final order of the district court granting summary judgment in favor of the defendants. The plaintiffs contend that their claim for a brokerage commission presented the district court with a genuine issue of material fact and that the grant of summary judgment was therefore improper.

I.

In this diversity action arising under New Jersey law, the plaintiffs sued Seldows Stationery and its three owners for breach of an alleged brokerage contract. 1 The plaintiffs

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assert that they entered into an oral agreement with the defendants to procure a buyer for Seldows Stationery on terms acceptable to the defendants. They contend that although they produced a ready, willing, and able purchaser, the defendants refused to consummate the sale. When the plaintiffs demanded a commission, the defendants denied the existence of a brokerage agreement and refused to pay. This suit followed.

The defendants filed a motion for summary judgment in the district court on the ground that the plaintiffs' claim was barred by N.J.Stat.Ann. § 25:1-9 (West 1940). That statute, insofar as applicable, provides:

(N)o broker or real estate agent selling or exchanging real estate for or on account of the owner shall be entitled to any commission for such sale or exchange, unless his authority therefor is in writing, signed by the owner or his authorized agent . . ..

The plaintiffs admitted that they were licensed real estate brokers and that the alleged brokerage agreement with the defendants was not in writing. The district court held that the sale of a business, its assets, and a leasehold constituted the sale or exchange of real estate under § 25:1-9. It then concluded that assuming "an agreement existed between plaintiffs and defendants, it related to (the) sale of a business, its assets, good-will and leasehold." Therefore, the district court held that recovery of the commission by plaintiffs was precluded by § 25:1-9 and proceeded to grant defendants' motion for summary judgment. 2

On appeal, the plaintiffs do not contest the district court's conclusion that § 25:1-9 requires a written brokerage agreement when the proposed sale is of a business, including a lease. Instead, they contend that the transaction underlying the brokerage agreement was for the sale of the defendants' corporate stock only and did not include the sale of any interest in real estate.

II.

Initially, it is important to identify our...

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