Breen v. Levine

• Decision Date: 29 October 1954
• Docket Number: No. A--624,A--624
• Citation: 32 N.J.Super. 525,108 A.2d 627
• Parties: John J. BREEN, trading as Bankers Realty Co., Plaintiff-Respondent, v. Norman LEVINE, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 525

32 N.J.Super. 525

108 A.2d 627

John J. BREEN, trading as Bankers Realty Co., Plaintiff-Respondent, v. Norman LEVINE, Defendant-Appellant.

No. A--624.

Superior Court of New Jersey Appellate Division.

Argued Oct. 18, 1954.

Decided Oct. 29, 1954.

George F. Losche, Hackensack, for plaintiff-respondent (Charles C. Shenier, Hackensack, attorney).

Morris Silver, Union City, for defendant-appellant (Leon Borden, Teaneck, attorney; Isidore Parnes, Cliffside Park, on the brief).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

The plaintiff, a real estate broker, entered into an agreement with the defendant, the owner of certain property, by which for the period of one month, namely from March 21 to April 21, 1952, plaintiff was given an exclusive agency to sell the property for $35,000, or such lesser price as the defendant agreed to take. The action here is founded upon the following clause in the agreement:

'If the property is sold to any person, agent or principal, to or thru whom it was offered thru an agent during the period of this authority, I will pay the stated commission.'

On March 24, 1952--which was within (to use the words of the clause) 'the period of this authority'--plaintiff induced a certain person to make a written offer for the property for $30,000, but defendant rejected the offer as unsatisfactory. So the whole matter was then dropped and only by the merest chance reopened some 14 months later, with the result that the property was thereafter sold to that person for $29,000 without the plaintiff being in any way aware of the developments. Upon these facts--we think no others need be mentioned--judgment was directed for the plaintiff at the trial. Defendant appeals.

The parties on the argument before us agreed upon one point, namely that the above clause does not remain operative after the lapse of a reasonable time following April 21, 1952. Messick v. Powell, 314 Ky. 805, 236 S.W.2d 897, 27 A.L.R.2d 1341, 1348, 1408 (Ct.App.1951). There is nothing in Schwartz v. Weinstein, 104 N.J.L. 368, 140 A. 418 (E. & A.1928) to the contrary. Cf. Restatement of Agency § 105, § 446(c); 27 A.L.R.2d 1348, 1390; 12 C.J.S., Brokers, § 88, p. 203. See, too, N.J.S.A. 45:15--17(f); and note that the amendment to that statute approved July 22, 1954, L.1954 c. 193, deletes the statement upon which Maraziti v. Corigliano, 29 N.J.Super. 86, 93, 101 A.2d 559 (App.Div.1953) turned, and indeed in the statement on the bill, by which the amendment was made, that case was cited.

It seems also to be conceded, as indeed it must, that the question as to what constitutes a reasonable time in this case is a matter for the jury. Richard v. Spagna, 135 A. 468, 5 N.J.Misc. 33, 37 (Sup.Ct.1926), affirmed 103 N.J.L. 711, 137 A. 918 (E. & A.1927); cf. 9 Wigmore, Evidence (3rd ed.), § 2553.

We come then to the single issue before us. Plaintiff claims that neither in the pretrial order nor at the trial did defendant bring to the trial court's attention the point now...