Gottlieb v. Connolly

• Decision Date: 15 March 1927
• Docket Number: No. 401.,401.
• Citation: 136 A. 599
• Parties: GOTTLIEB et al. v. CONNOLLY.
• Court: New Jersey Supreme Court

136 A. 599

GOTTLIEB et al.

v. CONNOLLY.

No. 401.

Supreme Court of New Jersey.

March 15, 1927.

Appeal from District Court, Bergen County, Fourth District.

Action by Wm. Gottlieb and another against Philip N. Connolly. From a judgment for defendant on his counterclaim, plaintiffs appeal. Affirmed.

Argued October term, 1926, before KALISCH, KATZENBACH, and LLOYD, JJ.

Filbert L. Rosenstein, of Paterson, for appellants.

Warner W. Westervelt, Jr., of Hackensack, for respondent.

PER CURIAM. This is an appeal by the plaintiff below (hereinafter called the plaintiffs) from a judgment of the district court of the Fourth judicial district of Bergen county, rendered for the defendant upon a counterclaim. The plaintiffs were real estate brokers. The defendant, Philip N. Connolly, was the owner of a property at Woodcliffe Lake, N. J., which he was desirous of selling for $7,000. The plaintiffs produced a purchaser by the name of Benjamin Petshaft. Connolly and Petshaft entered into an agreement for the sale and purchase of the property for $7,000. In the agreement, the property was described by metes and bounds and the amount of land was recited as being "7 acres more or less." On the back of a receipt given by Connolly to Petshaft, Connolly wrote the words, "commission of $600 on this sale to be paid to Wm. Gottlieb and Henry Stein," and signed his name thereto.

A survey of the property was afterwards made. The survey showed that, instead of there being 7 acres, there were only 4.65 acres. Petshaft refused to accept a deed for the property because of this difference in the acreage. The discrepancy was admitted. A settlement was then made between Connolly and Petshaft, by which Connolly returned to Petshaft the amount Petshaft had paid. Petshaft released Connolly from his obligations under the agreement of sale. Connolly refused to pay the plaintiffs the balance of the commission of $600, namely, $400. The commenced suit to recover the balance. Connolly filed a counterclaim for the $200 which he had paid. The case was tried by the judge without a jury. In the findings made by him, he held that Petshaft, the purchaser produced by the plaintiffs, was unwilling to consummate the purchase on the terms of Connolly, namely, the payment of $7,000 for the property; that the misunderstanding as to the amount of the land was a mistake in fact and not induced by fraud on the part of Connolly. The trial judge further held that there was no meeting of the minds of...