Hirsch v. Schwartz

• Decision Date: 29 April 1965
• Docket Number: No. A--236,A--236
• Citation: 209 A.2d 635,87 N.J.Super. 382
• Parties: Benjamin HIRSCH, Plaintiff-Appellant, v. Elmer SCHWARTZ, individually, Archie Schwartz Company, a New Jersey corporation, Isidor S. Hirschhorn, Ronson Metals Corporation, a New Jersey corporation, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 382

87 N.J.Super. 382

209 A.2d 635

Benjamin HIRSCH, Plaintiff-Appellant, v. Elmer SCHWARTZ, individually, Archie Schwartz Company, a New Jersey corporation, Isidor S. Hirschhorn, Ronson Metals Corporation, a New Jersey corporation, Defendants-Respondents.

No. A--236.

Superior Court of New Jersey Appellate Division.

Argued Jan. 25, 1965.

Decided April 29, 1965.

Louis Kraemer, Newark, for appellant.

Dean Sandford, Perth Amboy, for respondents Elmer Schwartz and Archie Schwartz Co. (Wilentz, Goldman & Spitzer, Perth Amboy, attorneys).

Irwin Weinberg, Springfield, for respondents Isidor S. Hirschhorn and Ronson Metals Corp. (Weinberg & Bohrod, Springfield, attorneys).

Before Judges GAULKIN, FOLEY and COLLESTER.

The opinion of the court was delivered by

COLLESTER, J.A.D.

Plaintiff Benjamin Hirsch appeals from a judgment of involuntary dismissal rendered in the Superior Court, Law Division, upon the conclusion of plaintiff's opening statement to the jury.

Plaintiff brought suit alleging that (1) defendants Elmer Schwartz and the Archie Schwartz Company, while acting as his agents, breached their confidential relationship with him by divulging information to defendants Isidor S. Hirschhorn and Ronson Metals Corporation, and (2) all four defendants maliciously interfered with a contractual relationship between plaintiff and the Central Railroad Company of New Jersey.

A brief re sume of plaintiff's opening statement to the jury will suffice. Plaintiff, who was interested in purchasing a tract of land in Newark owned by the Central Railroad Company of New Jersey (railroad), contacted Elmer Schwartz and obtained from him and his corporation an evaluation of the property. He had a previous acquaintance and experience with Schwartz and the Archie Schwartz Company, a real estate brokerage corporation in Newark, which specializes in industrial properties. Thereafter, plaintiff entered into a contract with the railroad to purchase the property for $21,000. The contract, dated February 24, 1961, was subject to the approval of the directors of the railroad and of the New Jersey Public Utilities Commission. The directors approved it.

In March or April 1961 a representative of the Archie Schwartz Company inquired of plaintiff if he would be interested in constructing a building on part of the property for lease to Ronson Metals Corporation (Ronson). At a conference with Elmer Schwartz plaintiff showed him his written contract with the railroad which revealed the proposed purchase price of the tract. They discussed the dimensions of the proposed building and, following a telephone conversation between Schwartz and Isidor S. Hirschhorn, vice-president and general manager of Ronson, talked about an additional proposed parking area for Ronson. Subsequently, Schwartz telephoned plaintiff suggesting a sale of the entire tract to Ronson. They discussed a sales price. Schwartz told plaintiff that if the sale was consummated, he would be entitled to a brokerage commission. Plaintiff told Schwartz, 'I will leave it entirely up to you to take care of it,' and the latter said he would do so.

In May 1961 the railroad, pursuant to regulations of the Public Utilities Commission designed to ascertain the highest price obtainable for the property, inserted a blind advertisement in the newspaper describing the tract and inviting sealed bids. Schwartz obtained a sealed bid envelope from the railroad and suggested to Ronson that it submit a bid for the property. Plaintiff first learned in June that Schwartz was not negotiating for the sale of the property from plaintiff to Ronson and that Schwartz was going to bid for the property on behalf of Ronson. He protested. Thereafter, the Archie Schwartz Company, with knowledge that plaintiff's contract called for a purchase price of $21,000, submitted a bid on behalf of Ronson to purchase the property for $24,750. The railroad petitioned the Public Utility Commission for permission to consummate its contract with plaintiff. This was opposed by Hirschhorn for Ronson. The Commission ruled that in view of Ronson's higher bid it could not authorize a conveyance to plaintiff.

Plaintiff, contending that defendants wrongfully used the confidential information of his contract with the railroad to outbid him, claimed damages for a loss of profit of $3,750 and asked for punitive damages.

I

The dismissal of a complaint on plaintiff's opening is permissible under our practice and constitutes a final adjudication on the merits unless the court orders otherwise. R.R. 4:42--2(b). However, motions for dismissal on plaintiff's opening are not favored and should not be granted unless the facts are undisputed and the law free from doubt. Passaic Valley Sewerage Com'rs v. Geo. M. Brewster, etc., Inc., 32 N.J. 595, 606, 161 A.2d 503 (1960); Poland v. Parsekian, 81 N.J.Super. 395, 399, 195 A.2d 660 (App.Div. 1963). The judicial attitude is that the case is rare where the interests of justice will not be served by withholding action on or by denying the motion and receiving the plaintiff's proof. Ibid. Also, our courts have become more cautious since the change in our practice in 1948, because such a dismissal may now be a final adjudication precluding the commencement of another action, which was permissible under the former nonsuit practice.

When such a motion is presented it admits the truth of all the facts outlined and gives to the plaintiff the benefit of every possible favorable inference which can logically and legitimately be deduced. With this in mind, we have carefully reviewed plaintiff's opening statement.

Plaintiff alleged that a confidential relationship arose between him and defendants Elmer Schwartz and the Archie Schwartz Company. Defendants argue that plaintiff's opening did not set forth a principal-agent relationship. However, the record indicates that plaintiff's counsel stated 'And, of course, Mr. Schwartz, as he pointed out In both conferences, was acting as a broker, said if this were consummated he would be entitled to--when I say he, the Archie Schwartz Company would be entitled to their brokerage commissions and the like. So Benjamin Hirsch said, 'I will leave it entirely up to you to take care of it,' and Elmer Schwartz said he would take care of the matter and be in touch with him.' (Emphasis added)

As we read the record below, we take this statement indicating a brokerage relationship to include not only the conference about the sale of the property to Ronson but the previous conference relating to a proposed building construction and lease as well. It is noted that at the first conference, concerning the lease, plaintiff exhibited to Schwartz his written contract showing a proposed purchase price of $21,000 which had been...