Roberts v. Remlinger

• Decision Date: 14 February 1929
• Docket Number: No. 10.,10.
• Citation: 144 A. 796
• Parties: ROBERTS v. REMLINGER.
• Court: New Jersey Supreme Court

144 A. 796

ROBERTS

v. REMLINGER.

No. 10.

Court of Errors and Appeals of New Jersey.

Feb. 14, 1929.

Syllabus by the Court.

Appeal from Supreme Court.

Action by Clayton B. Roberts against J. Charles Remlinger. Judgment for plaintiff, and defendant appeals. Affirmed.

Kreps & Bell, of Ocean City, for appellant.

Bourgeois & Coulomb, of Atlantic City, for respondent.

BLACK, J. The controversy in this case grew out of the profits derived from a real estate transaction. The land in question is located in Ocean City, Cape May county. The suit is to recover the sum of $35,000. The complaint alleges that on the 25th day of July, 1925, the plaintiff sold the land to Edward M. Sutton and James M. Chester for the sum of $275,000. The defendant thereupon agreed that, instead of the defendant making the agreement of sale to the plaintiff and the plaintiff making an agreement of sale with Edward M. Sutton and James M. Chester, he (the defendant) would make the agreement of sale directly with Edward M. Sutton and James M. Chester, and he would pay to the plaintiff the sum of $35,000; the $35,000 being the excess profit obtained from the transaction. The trial resulted in a verdict and judgment in favor of the plaintiff. The defendant appealed and filed five grounds of appeal, viz.:

First and fourth: Error by the trial court refusing to nonsuit the plaintiff.

Second and third: Error by the trial court permitting the plaintiff to testify concerning an alleged oral contract.

Fifth: The verdict is contrary to the weight of the evidence.

This latter cannot be considered in civil cases on appeal.

As we view the record in this case, it reveals pure questions of fact for the determination of the jury. The analysis of the case shows a suit to recover a specific sum of money, under a special promise to pay; to recover money had and received by the defendant for the use of the plaintiff, as was alleged in the common counts of a declaration under the old form of action in assumpsit; to recover money obtained, as a profit from a real estate transaction, which is not within the statute of frauds (2 Comp. St. 1910, p. 2610, § 2) required to be in writing. It was open to the jury to find, in addition to the facts alleged in the complaint, the following additional facts, viz.: The defendant, J. Charles Remlinger, had a contract with the Fidelity Realty Company for the purchase of the land for $190,000. He would sell the property if he could get a profit of $50,000. He (the defendant) orally agreed to sell the property to the plaintiff, Clayton B. Roberts, for $240,000, which would afford him a profit of $50,000. He was informed by Roberts that he (Roberts) had sold the property to Sutton & Chester for $275,000. It was arranged between them that the defendant, J. Charles Remlinger, would make the contract direct to Sutton & Chester; the defendant, J. Charles Remlinger, expressed satisfaction with the transaction, and agreed to pay the plaintiff, Clayton B. Roberts, the sum of $35,000, being the difference between the sum he was satisfied to accept, viz. $240,000, and the sale price of $275,000, procured by Roberts. The defendant, J. Charles Remlinger, made settlement and transfer of the property a day before the date fixed in the agreement of sale, in order to prevent, as is alleged, the plaintiff, Clayton B. Roberts, from getting his money, and still refuses to pay him; hence the suit to recover the sum of $35,000. The defendant now argues the verdict should be set aside, first, because the original promise was without consideration, and, second, because it was void and not enforceable under the statute of frauds. As we-view the facts in the record, these points are not tenable. They are both unsound for the following reasons: As to the first, the plaintiff, Clayton B. Roberts, having procured a purchaser for the property, which would yield Remlinger a profit of $50,000 and Roberts a profit of $35,000, and, having made known these facts to Remlinger, Remlinger in turn, in consideration of Roberts turning over his contract of sale to him, orally agreed to pay Roberts the excess profit of $35,000. Thus Remlinger received a benefit from the transaction by virtue of his contract to sell to Roberts; i. e., the making of a profit of $50,000. The benefit obtained by the defendant from the plaintiff's agreement to sell turned over to the defendant at his request, and by him executed, is a sufficient consideration to support the defendant's agreement to pay the plaintiff a portion of the profits obtained from...