Feist & Feist, Inc. v. A. & A. Realty Co.

• Decision Date: 28 March 1929
• Docket Number: No. 34.,34.
• Court: New Jersey Supreme Court
• Parties: FEIST & FEIST, Inc. v. A. & A. REALTY CO.

145 A. 478

FEIST & FEIST, Inc.

v. A. & A. REALTY CO.

No. 34.

Court of Errors and Appeals of New Jersey.

March 28, 1929.

(Syllabus by the Court.)

Appeal from Circuit Court, Essex County.

Action by Feist & Feist, Inc., against the A. & A. Realty Company. Judgment of nonsuit, and plaintiff appeals. Reversed, and venire de novo awarded.

Philip J. Schotland, of Newark, for appellant.

George D. Mulligan, of Newark, for respondent.

CAMPBELL, J. On September 13, 1922, plaintiff-appellant entered into an agreement in writing with Benjamin Myer and Henry Allsopp, then owners of an apartment house at 168 Clinton avenue, Newark, to act as agents to rent, collect rents, etc.

Paragraph 7 of such agreement provides as follows: "The said agency shall commence on the fifteenth day of September, 1922, and shall continue for a period of one year and will continue thereafter from year to year unless either party shall notify the other that the same is to terminate by giving three months' written notice prior to the expiration of this agreement or any renewal thereof. In the event that this agreement is canceled as hereinbefore provided for, prior to the expiration of any lease or tenancies existing in the above property, the said owner hereby agrees to pay to the said agent on the date of the cancellation of this agreement, or any renewal thereof, as herein provided for, a commission of 5% on the full amount of all such leases and tenancies."

On November 18, 1922—slightly over a month after the agreement in question went into operation—the plaintiff-appellant received a letter signed by A. E. Allsopp, 2d, for Henry Allsopp, directing that a check for rents of the apartment house should be sent to A. E. Allsopp, Inc., instead of Henry Allsopp.

This was probably because of a change of ownership of the property, but that fact does not clearly appear.

On January 13, 1923, about a year and four months after the agreement went into operation, the plaintiff-appellant received a letter from Henry Allsopp advising that there had been a reorganization of the A. & A. Realty Company as of January 10; that the headquarters of the company had been removed to the office of the president, Albert E. Allsopp, 2d, Kinney Building,790 Broad street, Newark, N. J.

On January 16, 1923, A. E. Allsopp, 2d, as president, wrote plaintiff-appellant to send statements for the property in duplicate and to make "the check from now on payable to the A. & A. Realty Company instead of A. E. Allsopp, Inc., as per letter inclosed." The letter inclosed was, in all probability, the letter of January 13, before referred to.

On January 6, 1927, A. E. Allsopp, 2d, as president of the A. & A. Realty Company, wrote the plaintiff-appellant expressing dissatisfaction with its method of handling the property. This was replied to under date of October 15, 1926, inclosing a rather voluminous report under date of October 9, 1926,

On January 6, 1927, A. E. Allsopp, 2d, as president of A. & A. Realty Company, wrote plaintiff-appellant as follows: "This is to inform you that we have leased the entire property at 168 Clinton Avenue to Mr. Peter Glod and have assigned the lease of Ann Davis to him; therefore commencing February first, he will collect the rents and take over the general management of the building. As we understand it we owe you 5% of the uncollected rent of the Davis lease which you consummated last October and if you will render us a bill for same we will be pleased to send you a check."

This was answered by plaintiff-appellant on January 13, 1927, by a letter which, amongst other things, stated: "Your understanding as outlined in your letter to the effect that you owe us 5% of the uncollected rents under the Davis tenancy is only partially correct as perusal of your copy of the management agreement will show. Under it we are entitled to a commission to the expiration of any leases made during the term of the agreement Interpreted this would mean that we are entitled to 5% of the aggregate rentals provided in the Davis lease plus 5% of the aggregate rentals of the lease made with Peter Glod to the date of their expiration."

On March 3, 1927, the plaintiff-appellant brought an action against the respondent to recover the sum of $1,025, as follows:

To commissions due under management agreement canceled by you under date of January 6, 1927—

Ann Davis—from February 1, 1927, to October 1, 1927

$ 1,000 00

$ 50 00

Peter Glod, 5 yrs. from Feb. 1, 1927, to February 1, 1932

19,500 00

975 00

$1,025 00

Upon a trial of the cause, at the...