Stout v. Humphrey

• Decision Date: 15 June 1903
• Citation: 55 A. 281,69 N.J.L. 436
• Parties: STOUT v. HUMPHREY.
• Court: New Jersey Supreme Court

55 A. 281

69 N.J.L. 436

STOUT

v. HUMPHREY.

Court of Errors and Appeals of New Jersey.

June 15, 1903.

(Syllabus by the Court.)

Error to Circuit Court, Hunterdon County.

Action by Harry L. Stout against Lambert Humphrey. Judgment for defendant, and plaintiff brings error. Affirmed.

The action was on contract, and brought by the plaintiff, an attorney at law, against the defendant, a hotel proprietor in Flemington, to recover the sum of $1,175. The declaration contained the common counts only, and annexed thereto was the following bill of particulars:

"The following is a bill of particulars of the demand whereupon the annexed declaration is founded: For legal advice and services, traveling expenses, and disbursements done, performed, and expended by plaintiff as attorney for defendant in and about the sale of the property of the defendant known as the Union Hotel, situated in the village of Flemington, in the county of Hunterdon, and state of New Jersey, between the first days of May and August, A. D. 1899. $1,200 00

Cr.+++++

August, 1899, by cash paid on account

25 00

Balance due

$1,175 00"

It appears from the testimony at the trial that some time in the month of March, 1809. the plaintiff had a conversation with the defendant, in which conversation the defendant said that he desired to sell his hotel property, and the plaintiff testified that "Mr. Humphrey, in the conversation in reference to the disposition of his property, wanted to know what Would be the best thing to do in order to dispose of the property; and he talked about the price; what he wanted for it; what the receipts were per day; the manner in which the hotel was being run; that his wife was down to his residence, and was unable to get to the hotel, and he had to devote part of his time there, and had to look after the entire management and control of the hotel; and I said to him the property had better be advertised in the New York papers; that I knew of no one in the market here, and I advised him to advertise in the New York papers; and he said, 'Will you advertise that property for sale and look after the correspondence?' and I told him it would be considerable work; and he said. 'How much will you charge?' and I said, 'If you get $45,000 for this hotel it is a big price, and I may have to go away some, and there is considerable work attached to it, and you ought to give me $1,500.' He said, 'That is too much.' He said, 'If you will keep me straight in this transaction, and I sell the property, I will give you $1,000 and the lot on Elwood avenue.' I says, 'Under the circumstances, I will undertake it;' and he said. 'Understand, if I don't sell it you don't get anything.'" The plaintiff then detailed the services performed by him. It then appeared that in August following the defendant sold the property. Subsequently the plaintiff had a conversation with the defendant, after he had given possession of the property to the purchaser, in which the defendant said that the deal was changed a little, and that the purchaser was to take three years to pay for it, and that he had not received much money. Then, to quote the testimony of the plaintiff: "'Now,' he says, 'to pay you now would be giving you a good deal of money.' He says, 'Mr. Chamberlain might not make a success of the business; he may die; then I would be that much money out;' but he says, 'I will give you some on account.' Then he says, 'When Chamberlain takes his deed I will pay you the balance;' * * * and he then gave me $25.00 on account; and I said, 'Give me a paper to show the balance due me;' and he said, 'My word is as good as my bond;' and I says, 'All right, Mr. Humphrey;' and he said, 'I will pay you when he takes the deed.'" After the delivery of the deed the plaintiff demanded of the defendant the balance he claimed to be due in cash and the transfer of the lot, when the defendant refused to pay him anything. At the close of the plaintiff's case, Pitney, J., directed a nonsuit on the ground that the contract sued on was void so far as it related to services redered by the plaintiff as a real estate broker, because the contract was not in writing, and so was in violation of section 10 of the statute of frauds and perjuries.

Willard C. Parker and H. B. Herr, for plaintiff in error.

George H. Large, for defendant in error.

VROOM, J. (after stating the facts). The plaintiff in error relies upon the following assignments of error: (1) That the said justice before whom the said cause was tried nonsuited the plaintiff on the ground that under section 10 of an act entitled "An act for the prevention of frauds and perjuries," approved March 27, 1874 (Revision, p. 446), the action of the plaintiff could not be sustained, and therein erred in law; (2) that the said justice sustained the motion of nonsuit made by the defendant, when the judgment should have been to overrule said motion, and to give judgment thereon in favor of the plaintiff, and therein erred in law.

The tenth section of the statute of frauds and perjuries first became a part of our statute law in 1873, and the act then passed was entitled "An act to regulate the commissions of brokers and real estate agents in the sale of land," and as passed was in the following words: "That no broker or real estate agent, selling land on account of the owner, shall be entitled to receive any commission for the sale or exchange of any real estate, except the authority for selling is in writing and signed by the owner or his authorized agent, and the rate of commission on the dollar shall have been stated in such authority." P. L. 1873, p. 50. In 1874 that act was included in the statute "for the prevention of frauds and perjuries," in the Revision of that year (Revision, p. 446), constituting section 10 of that act, and is substantially identical with the statute above quoted.

The meaning of this section, in so far as it prescribes that there must be a written authority to entitle the broker or real estate agent to commissions upon the sale or exchange of property and the object of such requirement, is too plain for contention; the question raised is as to whom do the provisions of the act apply. The insistment of the plaintiff in error is that this section is expressly confined to real estate agents or brokers, and to contracts authorizing them to dispose of lands of owners, and that an attorney at law, not carrying on commonly a real estate business, and who is employed, in part, at least, by reason of his being such attorney, to render legal services in and about the sale of real property, is not within the meaning of this section.

The learned trial judge, we think, tersely and correctly interpreted this section of the statute when he said: "But as I read the statute, both in its letter and manifest policy, it is aimed at any person who acts as broker or real estate agent in the very transaction in question out of which the claim to compensation arises. It would be a very narrow construction of the statute to say that it applied only to him who ostensibly and usually carried on the business of brokerage, or a real estate business so-called."

A "broker" is defined to be "a middleman or agent, who, for a commission or rate per cent. on the value of the transaction,...