Sustick v. Slatina, A--600

• Decision Date: 16 December 1957
• Docket Number: No. A--600,A--600
• Citation: 137 A.2d 54,48 N.J.Super. 134
• Parties: John A. SUSTICK, Jr., Plaintiff-Respondent, v. Frank SLATINA, Mary Slatina, his wife, and Salvatore Marotta, Defendants-Appellants. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 134

48 N.J.Super. 134

137 A.2d 54

John A. SUSTICK, Jr., Plaintiff-Respondent, v. Frank SLATINA, Mary Slatina, his wife, and Salvatore Marotta, Defendants-Appellants.

No. A--600.

Superior Court of New Jersey Appellate Division.

Argued Nov. 18, 1957.

Decided Dec. 16, 1957.

William Reich, Trenton, argued the cause for defendants-appellants (William Reich, attorney for appellants Frank and Mary Slatina; Charles Farrington, Trenton, attorney for defendant-appellant Salvatore Marotta; William Reich, of counsel).

David Deitz, Trenton, argued the cause for plaintiff-respondent (David Deitz, attorney).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

FREUND, J.A.D.

The plaintiff, John A. Sustick, Jr., a licensed real estate broker, instituted suit against Salvatore Marotta, the owner of real estate purchased from him by Frank Slatina and Mary Slatina, his wife, and against the Slatinas to recover damages for the tortious interference by defendants with his contractual relationship as a broker with Marotta, whereby he lost a commission which he would otherwise have earned on the sale of the property.

Plaintiff testified that in July 1956 he sold the Slatinas' house for them and they asked him to find them another home. He showed them at least six houses including, on July 15, 1956, the Marotta premises at 2130 Pennington Road, in the Township of Ewing. They inspected the inside of the house, gaining access from the cellar. He said the Slatinas did not tell him that they had previously seen the Marotta house. They said they liked the house and asked him to communicate with the owner and ascertain the price. The next day he saw Marotta and asked whether, in the event he produced a buyer, Marotta would pay him a commission. Marotta said he would. But in answer to his request for a written 'exclusive,' Marotta said that if he could get a buyer, he would be only too willing to pay a commission but that it was not necessary to put their agreement in writing. Marotta said he wanted $33,000 but would take $32,500. He asked for the name of the prospect and plaintiff gave him the names and address of the Slatinas and said he had sold their home for them and that they were looking for another house. The next day plaintiff saw Mrs. Slatina who made a counter-offer of $29,000 which he then submitted to Marotta, who said he had to get at least $32,000 if he had to pay a commission. Plaintiff testified he tried to get the Slatinas to raise their counter-offer but was unable to do so. He was told by Mrs. Slatina to keep trying and $29,000 was their final offer. She finally told him 'to forget about it, she told me they were not interested in the house any more,' and they were not going to pay more than $29,000.

Plaintiff further testified that during the course of these negotiations the house was under construction and had not yet been completed. The inlay for the kitchen and dining room floors, scraping of floors, landscaping, flagstone terrace, garage floor and door, sidewalk, and some other miscellaneous items remained to be finished. On cross-examination, after some contradiction, he said the $29,000 offer he submitted to Marotta was 'as is' which he said he told Marotta meant with floors scraped, linoleum, garage and sidewalk finished, but without the flagstone terrace and landscaping. He said Marotta refused this offer and said that his $32,000 price included everything completed including the terrace and landscaping. He also said that he had reported to the Slatinas that Marotta refused to accept the offer of $29,000 'as is' but wanted $32,000 for a completed house.

On August 16, Sustick discovered that the Marotta house was occupied. He knocked on the door, Mrs. Slatina let him in, and when he asked her if she had bought the property she said she had. Sustick testified further as follows:

'So I said 'I don't think that was the right thing to do. You knew I was working with Mr. Marotta and I am entitled to a commission. I showed you the house. And then you went around my back and bought the house.' She said, 'Well, you can't blame me for buying the house direct from the owner when I could save money. If there is any commission due you the seller should pay it and not me.' And she started to laugh. So I walked out.'

The contract between Marotta and the Slatinas, executed on August 2, 1956, was admitted in evidence, from which it appeared that Marotta sold the property to the Slatinas for a contract price of $27,900, plus $90 for finishing floors, $160 for linoleum and $165 for a garage door. The contract recited that it was for a house 'under construction' and sold 'as is.'

Marotta testified that two or three days after July 10 when he put a 'for sale' sign on the property, he saw Frank Slatina and told him that if there was no broker's commission to be paid, the price would be $31,000 complete. July 14 or 15, he said, was the first time he saw plaintiff and he told him the price was $31,000 without payment of commission. Marotta admitted that plaintiff offered $29,000, which he refused because he needed from $2,500 to $3,000 to complete the house. About a week later, he said, he saw Mr. Slatina at the Pennington Avenue house. After negotiations they entered into a written agreement on August 2, 1956. He admitted that it would cost between $2,500 and $3,000 to complete the house.

Mary Slatina testified that the day after she saw the Marotta property with plaintiff, he told her they could buy it for $33,000 and she made a counter-offer 'as it was standing' and said that they could not go higher than $28,000. She said that 'a couple of days or ten days' later she saw Marotta and entered into negotiations with him resulting in the contract of August 2. She denied that Sustick took them through the house and said she and her husband had seen the place on June 12 or 13.

At the close of the plaintiff's case and at the conclusion of the entire case, motions were made to dismiss the complaint. Both were denied. The jury returned a unanimous verdict in favor of plaintiff and against the three defendants for $1,375. Defendants appeal from the resultant judgment. They claim there was error in refusing to dismiss the complaint at the close of the plaintiff's case and at the conclusion of the entire case, in permitting a witness to testify as to a collateral matter, and in refusing to charge the jury as requested.

Initially, we observe that the defendant Marotta never asserted as a defense R.S. 25:1--9, N.J.S.A., requiring a writing for recovery of commission by a real estate broker, in his answer, in his argument before the trial court, or on this appeal, although the pretrial order recites that one of the legal issues to be tried is 'applicability of the Statute of Frauds.' There was no compliance with R.R. 4:8--3 which requires the pleading in the answer of the 'statute of frauds * * * and any other matter constituting an avoidance or affirmative defense.' The policy of the statute of frauds is within the provisions of the rule. Further, R.R. 4:12--8 provides that where a party has failed to plead any affirmative defense, it will be considered to have been waived. Massari v. Einsiedler, 6 N.J. 303, 308, 78 A.2d 572 (1951); 2 Schnitzer and Wildstein, New Jersey Rules Service, IV--151 et seq. Nor did any of the defendants argue that recovery against them in tort would offend the policy of that statute. Marotta was content to deny the plaintiff's claim and affirmatively argue the want of a contractual relationship, and the Slatinas that they were fully justified in getting the property for the lowest price possible. Cf. C. B. Snyder Realty Co. v. National Newark, etc., Banking Co., 14 N.J. 146, 164, 165, 101 A.2d 544 (1953), but see Geo. H. Beckmann, Inc., v. Charles H. Reid & Sons, Inc., 44 N.J.Super. 159, 130 A.2d 48 (App.Div.1957). We must therefore assume that any defenses based directly or indirectly on the cited statute or its policy are waived as we do not ordinarily consider on appeal matters not raised before the trial court, except questions relating to jurisdiction and public policy. Roberts Electric, Inc., v. Foundations & Excavations, Inc., 5 N.J. 426, 75 A.2d 858 (1950); In re Costa, 45 N.J.Super. 424, 133 A.2d 43 (App.Div.1957); State v. Laurel Mills Sewerage Corp., 46 N.J.Super. 331, 134 A.2d 720 (App.Div.1957).

In considering the grounds of appeal--that the complaint should have been dismissed at the close of the plaintiff's case and likewise at the conclusion of the entire case--both contentions may be resolved in determining the latter. Parrette v. Citizens Casualty Co., 5 N.J.Super. 258, 263, 68 A.2d 758 (App.Div.1949); City Nat. Bank & Trust Co. of Salem v. Hassler, 9 N.J.Super. 153, 75 A.2d 546 (App.Div.1950); Armstead v. Schletter, etc., Silk Hosiery, Inc., 9 N.J.Super. 270, 76 A.2d 28 (App.Div.1950); Beck v. Monmouth Lumber Co., 137 N.J.L. 268, 59 A.2d 400 (E. & A. 1947).

It therefore is necessary for us to determine whether the proofs were such as to support a jury finding for the plaintiff against the defendants within the rule as to wrongful interference with business opportunity or prospective economic advantage. Mayflower Industries v. Thor Corp., 9 N.J. 605, 89 A.2d 242 (1952) affirming on the opinion in the Chancery Division, 15 N.J.Super. 139, 83 A.2d 246 (Ch.Div.1951) and 15 N.J.Super. 337, 83 A.2d 366 (Ch.Div.1951). The testimony was not only confusing, but conflicting, notably the defendants' with each other, and vague. There is no denial that plaintiff was requested to and did show the Marotta house to the Slatinas who were interested in its acquisition. Defendants knew of plaintiff's interest in the transaction; that he had seen all the parties and had conducted negotiations until he was told by Mrs. Slatina 'to forget about it,' that they were no longer interested in the house.

Defendants argue that there was some conflict between ...