Sherman v. Josephson
| Citation | 44 N.J.Super. 419,130 A.2d 871 |
| Decision Date | 09 April 1957 |
| Docket Number | No. A--641,A--641 |
| Parties | Walter G. SHERMAN, Plaintiff-Respondent, v. Milton JOSEPHSON, Defendant-Appellant, and The Perfection Development Company, a Corporation of New Jersey, Defendant. . Appellate Division |
| Court | New Jersey Superior Court – Appellate Division |
Frank I. Casey, Trenton, for respondent.
James M. Davis, Jr., Mount Holly, for appellant.
Before Judges CLAPP, JAYNE and FRANCIS.
The opinion of the court was delivered by
FRANCIS, J.A.D.
The issue in this cause concerns the legal propriety of a judgment against defendant individually representing commissions earned by plaintiff Sherman, a real estate broker, on the sale of certain property owned by a corporation of which defendant is president.
The factual framework must be outlined in order to present an understandable view of the case. During the period with which we are concerned, the Perfection Development Company, a corporation, was the owner of a tract of land of slightly over 58 acres in Bordentown, New Jersey, and defendant, Milton Josephson, an attorney, was its president. More specifically, in his answer to the complaint Josephson admitted that he was the 'principal and only real stockholder' of the corporation.
In the summer of 1954 Josephson requested Sherman to sell the property 'for him.' Sherman agreed and was given the particulars, including the asking price of approximately $1,700 per acre. There was no disclosure of title in the Perfection Development Company. On the contrary, the indication was that Josephson occupied the status of owner. Sherman busied himself in the quest for a buyer and early in August produced one Henry Aaronson of New York as a buyer. A sale price of $87,000 was agreed upon and on August 2 Josephson drew the contract in his office. The corporation was named as owner and vendor. This was the first awareness Sherman had that title was not held by Josephson. Execution of the document was done in this fashion:
'The Perfection Development Company
'Milton Josephson.'
On August 5 Sherman called at Josephson's office and pointed out the absence of any clause in the agreement recognizing him as the broker and fixing the amount of his commission. Apparently the oral understanding was that 10% Of the sales price would be the rate. However, at Josephson's suggestion the earned amount was reduced to $8,000, whereupon the stipulation was reduced to writing in the following form prepared by him:
'Perfection Development Co.
'Bordentown, N.J.
'This will confirm our understanding that I am to receive a commission for the sale of the Cemetery tract to Aaronson associates in the sum of $8,000.00 provided that the buyers actually purchase the property and pay for the same and the commission shall be payable pro rata as you receive the proceeds.
'Walter G. Sherman /s/
'Accepted:
'Milton Josephson /s/
'Milton Josephson'
During the negotiations for the sale the parties were aware that the purchaser's home construction plans did not conform with the local zoning ordinance. In that connection the seller unqualifiedly agreed, among other things, 'to have the Township approve and issue building permits to construct one (1) family homes on the tract of land sold hereunder.
'1. Said homes to have 860 square feet of living space, including the utility room.
'2. Two of said homes shall be permitted to be erected to the acre, which acre shall include all roads (streets and avenues).
The seller undertook also to 'obtain the necessary and proper permits and consents whereby the Township will approve and permit the construction of roads * * * in the tract of land sold herein which shall not exceed the cost of $1.50 per square yard.'
And finally it was stipulated that:
According to Josephson, some efforts were made by him to fulfill these contractual commitments. The water supply is controlled by the municipality and he took up with the mayor the matter of obtaining permits to tap into the water mains. But this was not successful. However, the record does not show that he ever advised the buyer of this important failure.
With respect to the building code and zoning ordinance changes or variances he had agreed to obtain, the testimony reveals that they, too, were discussed with the mayor and a member of the planning board. Josephson asserted that in order to present the matter formally it was necessary to submit with the written applications a plot plan showing the proposed street and lot layout of the tract. He made certain requests of the attorney for the buyer orally and in writing on October 13 and 18, for information and authority to have the township engineer prepare such a plan but the buyer did not comply. The sketch of the type house and the copies of a plot plan given to him were not adequate for the purpose.
When these letters were written in October the 60-day period allowed for securing the necessary permits had expired. Even though the buyer had given no express indication of an intention to exercise the termination option, Josephson had already sought an extension. On October 8 the attorney for the buyer wrote saying that he would approve and recommend to the buyer that the matter be extended to November 30 and that he would endeavor also to have Aaronson write granting the extension. The attorney's letter plainly indicates an intention to proceed with the transaction. Although such extension had not been sent prior to the alleged breach by the seller, no evidence was adduced indicating that Aaronson ever threatened or took any positive action toward putting an end to the contract. It is noted also that reference is made to an oversight in the written contract, namely, the agreement that the purchaser was to receive two acres on which to erect model houses. Apparently this was taken care of thereafter because the contract introduced in evidence shows the following undated addendum after the signatures of the parties:
'The seller agrees to convey to the Buyer as part of the down payment two acres adjoining Seidel and Cemetery Lane.
'It being further understood and agreed between the parties that releases under the mortgage shall not consist of all frontage but shall be mutually agreed upon between the parties.
'M.J. /s/
'C.R. /s/'
The initials C.R. refer to Charles Rosenthal, the buyer's attorney.
Not having received the written extension or the particular plot plan by November 1, defendant said he considered the contract at an end. The $1,000 deposit was not returned because of what he considered to be the buyer's failure of performance. Shortly thereafter negotiations for sale of the premises were resumed with another party and a contract of sale was executed on or about January 28, 1955. The next day, January 29, Josephson sent back the Aaronson deposit of $1,000 with the statement that 'conditions make it impractical for our negotiations to continue.' On January 31 the buyer's attorney advised that the contract was considered in force and demanded that a date be fixed for the closing. Thereafter, on February 15, defendant was notified that the buyer would call at defendant's office on February 24 at 11 a.m. to carry out the terms of the agreement. On the 24th this...
To continue reading
Request your trial
-
State v. Lynch
...not be served by withholding action on or by denying the motion and receiving the plaintiff's proof. (Sherman v. Josephson, 44 N.J.Super. 419, 426, 130 A.2d 871, 875 (App.Div.1957)). Adherence to this policy in criminal trials is even more compelling in view of the double jeopardy factor. S......
-
Passaic Val. Sewerage Com'rs v. Geo. M. Brewster & Son, Inc.
...not be served by withholding action on or by denying the motion and receiving the plaintiff's proof.' Sherman v. Josephson, 44 N.J.Super. 419, 426, 130 A.2d 871, 875 (App.Div.1957). See also Nelson v. Great Atlantic and Pacific Tea Co., 48 N.J.Super. 300, 137 A.2d 599 Such a motion admits t......
- Phillips v. Board of Adjustment of Town of Westfield, A--130
-
Nelson v. Great Atlantic & Pacific Tea Co.
...69 A.2d 730 (1949).' Beti v. Vaniska, Inc., supra (8 N.J.Super. at page 278, 74 A.2d at page 324). In Sherman v. Josephson, 44 N.J.Super. 419, 425--426, 130 A.2d 871, 875 (App.Div.1957) we 'There is very little in our practice to commend dismissal on the plaintiff's opening to the jury. It ......