Gabriel v. Glickman

• Decision Date: 28 January 1947
• Citation: 51 A.2d 106
• Parties: GABRIEL v. GLICKMAN et al.
• Court: New Jersey Supreme Court

51 A.2d 106

GABRIEL

v.GLICKMAN et al.

Supreme Court of New Jersey, Hudson County.

Jan. 28, 1947.

Action at law to recover broker's commission by Maudia M. Gabriel against Lawrence M. Glickman, individually and Jerome Liquors, Inc. On plaintiff's motion to strike out answer and for summary judgment.

Decision in accordance with opinion.

Chazin & Chazin, of Jersey City, for plaintiff.

Fred Saperstein, of Union City, for defendants.

BROWN, Commissioner.

The plaintiff moves to strike the defendants' answer on the ground that it is sham and frivolous and the separate defenses therein on the ground that they are sham and frivolous and in law do not constitute a sufficient answer. The suit is brought to recover a broker's commission alleged to be due under a contract made between the defendants and the buyer, Dicran Goulian. The contract was in printed form with spaces which were filled by typewriting. Newton G. Gabriel was the broker who brought about the sale and thereafter assigned his claim to the plaintiff. The suit is based on clause 10 of the contract which provides: ‘It is mutually understood and agreed between the parties that Newton G. Gabriel of No. 6701 Boulevard East, West New York, New Jersey, is the only broker who brought about this sale and is entitled to the commission hereunder at the rate of seven per cent of the purchase price to be paid by the seller.’

The contract provided for the sale price of $13,500; $1,500 to be paid on the signing and delivery of the agreement of sale and the remainder on the delivery of the bill of sale. There was a clause in the agreement by which the seller gruaranteed the gross business to be $800 weekly, with a trial period of one week for the purchaser to tally the receipts and if found to be less, the purchaser was to be repaid the $1,500 deposit. Both parties agree in substance the guarantee was not fulfilled. The seller claiming that he ‘improvidently neglected to register about $125.00 worth of sales.’ The defendants admit they entered into the written contract and it contained clause 10 but they say they had an oral understanding with the plaintiff's assignor that his commission was to be five per centum instead of seven as written in the contract and the commission was to be paid ‘only if and when title to said business was passed, a bill of sale for same was actually executed and delivered, and the consideration thereof paid in full.’ Although the deposit of $1,500 was received by the defendants, the remainder of the purchase price was not paid as the weekly guarantee of sales was not fulfilled. The contract contained no provision as to the time the broker's commission was payable. In the separate defenses in the answer the defendants allege the broker ‘fraudulently, and with intent to deceive and defraud these defendants, was responsible for and did succeed in having said clause 10 drawn and worded as described in paragraph 2 of the complaint.’

The broker in his affidavit, on the motion to strike, denies the allegations of fraud and the defendants in their answering affidavit explain the manner in which the fraud was alleged to have been committed at the office of the lawyer where the contract was signed as follows: ‘I, (Glickman) was handed a copy of the contract and I examined the same only so far as related to the terms of the amount of the purchase price and the manner of the payment thereof, relying as I did, so far as the other terms and conditions were concerned, upon said Newton G. Gabriel, who at the time said to me ‘Don't worry about the terms of the contract, I have protected you!’ ‘You are the one who is paying my commission, aren't you?’ I thereupon signed the contract.'

There appears no power granted by the defendants to the broker to represent them, as their agent, to prepare the contract. His business was to effect a sale and that was done when the contract was signed by the parties. The statement alleged to have been made by the broker does not relieve the defendants from their liability in signing the contract. It was their duty to know what they were signing. They evidently did know for they accepted the deposit and during the trial week of sales they evidently had the contract and made no objection to the broker or the buyer. If there was a failure on their part to know the commission was seven per centum it was due to the defendants' negligence. The contract was binding between the buyer and seller and the broker has a good cause of action thereon. R.S. 2:26-3.6, N.J.S.A.; Tapscott v. McVey, 82 N.J.L. 35, 81 A. 348, affirmed 83 N.J.L. 747, 85 A. 343; Holt v. United Security Life Insurance Co., 76 N.J.L. 585, 72 A. 301, 21 L.R.A.,N.S.,691; Mendel v. Women's Christian Temperance Union, 1 N.J.Misc. 605. Under the law the broker was entitled to his commission when the agreement of sale was signed. What the defendants are trying to do in this case is to change and vary the terms of a written agreement by parol evidence, though they knew the kind of agreement they were signing and had full opportunity to read the contents and evidently knew when they signed it was a binding agreement between the parties thereto. There are cases where oral evidence is admissible to vary the terms of a written instrument. This case is not within that category. A rescission of a contract on the ground of fraud is indispensable only when the design is to vacate its entire obligation. In the absence of ambiguity in a written agreement which is complete, oral evidence cannot be introduced to explain or vary the agreement. If, through mistake or fraud, and agreement in writing does not express the contract which the parties intended to make, the remedy is in equity to reform it, but until it is so reformed it is unassailable by parol testimony. Van Horn v. Van Horn, 49 N.J.Eq. 327, 23 A. 1079. See also Naumberg v. Young, 44 N.J.L. 331, 43 Am.Rep. 380. In the case last cited it was held, the only criterion of the completeness of the...