Klie v. Hollstein

• Court: New Jersey Supreme Court
• Writing for the Court: TRENCHARD, J.
• Citation: Klie v. Hollstein, 98 N.J.L. 473, 120 A. 16 (N.J. 1923)
• Decision Date: 05 March 1923
• Docket Number: 83
• Parties: J. WILLIAM KLIE AND RUDOLPH OETLING, RESPONDENTS, v. GUSTAVE HOLLSTEIN, WILLIAM HOLLSTEIN AND HENRY HOLLSTEIN, PARTNERS UNDER THE FIRM NAME OF HOLLSTEIN BROTHERS, APPELLANTS

120 A. 16

KLIE et al.

v. HOLLSTEIN et al.

No. 83.

Court of Errors and Appeals of New Jersey.

March 5, 1923.

(Syllabus by the Court.)

Appeal from Circuit Court, Hudson County.

Action by J. William Klie and another against Gustave Hollstein and others, partners under the firm name of Hollstein Bros. Prom a judgment for plaintiffs, defendants appeal. Affirmed.

Fred Dieffenbach, Jr., and Ziegener & Lane, all of Jersey City, and Harlon Besson, of Hoboken, for appellants.

Lichtenstein & Lichtenstein, of Hoboken (Julius Lichtenstein, of Hoboken, on the brief), for respondents.

TRENCHARD, J. This is an action on a contract for broker's commission for the procurement of a lessee for a factory property.

The defendants, in their answer, denied the existence of the contract, and as a further defense set up that the alleged contract was not enforceable because not in writing.

At the trial the evidence, while conflicting, nevertheless permitted the jury, if they saw fit, to find the following facts: The plaintiffs were real estate brokers. The defendants were owners of a factory property. They authorized the plaintiffs to lease the property, and that agency was an exclusive right to negotiate the lease. The plaintiffs introduced representatives of the W. T. Grant Company to the defendants, showed them the property, and as a result thereof the defendants leased the property to that company. It further appeared that the defendants, instead of paying the commissions, called for by the contract, to the plaintiffs, paid them to other brokers, upon the latter indemnifying the defendants against the claim of the plaintiffs.

The trial judge submitted to the jury the questions presented, namely: (1) Was a contract made; (2) if it was made, did it by its terms confer upon the plaintiffs an exclusive right to negotiate and act for the defendants in bringing about a leasing of the property; (3) if it was made, but was not such an exclusive contract, were the plaintiffs the efficient and procuring cause of the lease?

The jury found for the plaintiffs, and the defendants appeal from the consequent judgment.

We are of the opinion that the judgment should not be disturbed.

The first ground of appeal requiring consideration is that the contract is unenforceable because not in writing.

We think there is no merit in this point. It is predicated upon the contention that the agreement under which plaintiffs claim is a contract within section 10 of the Statute of Frauds. We do not take that view.

Section 10 of the Statute of Frauds (C. S. p. 2617, amended by P. L. 1918, p. 1020) declares that—

"No broker or real estate agent selling or exchanging land for or on account of the owner shall be entitled to any commission for the sale or exchange of any real estate, unless the authority for selling or exchanging such land is in writing, and signed by the owner or his authorized agent. * * * "

This statute, being in derogation of the common law, must be strictly construed, and hence will not apply to cases which are not strictly within its terms.

Now the contract in suit is not one to pay commissions for "selling or exchanging land." On the contrary, it is an agreement to pay the plaintiffs for procuring a lessee for the defendants' real estate, and for this service (as the jury could and did find) they were to receive a commission of 21/2 per cent. on the gross rentals. Such an agreement is not within the statute, and hence is not required to be in writing. Burt v. Brownstone Realty Co., 95 N. J. Law, 457, 112 Atl. 883.

The next point is that the trial judge erred in refusing to charge defendants' requests Nos. 1 and 2. They were as follows:

"(1) Before they are entitled to a recovery, the plaintiffs must satisfy you by a fair preponderance of the evidence that plaintiff Oetling actually had an agreement to receive a commission for securing a tenant to lease the Hollstein Building; that the said plaintiffs Oetling and Klie were the efficient and procuring cause of the negotiation of the lease between the Hollstein Bros, and W. T. Grant Company; that the rental terms of said lease corresponded with the authority to secure a tenant if any, charged by the plaintiffs to have been conferred upon them by the defendants.

"(2) If you are not satisfied by a fair preponderance of the evidence that plaintiffs were the efficient and procuring cause of the negotiation of the lease between the Hollstein Bros, and W. T. Grant Company, and you are satisfied that Herman Bauridell and Julius I. Kislak were also brokers, and were the efficient and procuring cause of the negotiation of said lease, then you must find your verdict for defendants."

Both of these requests were defective and were properly denied, because they made the right of the plaintiffs to recover to depend, in any event, upon proof that they "were the efficient and procuring cause of the negotiation of the lease," ignoring the...