96 N.J.L. 522 | N.J. | 1921
The opinion of the court was delivered by
In this ease the plaintiff obtained a judgment in the trial court against the defendant. The judgment was for commissions alleged to have been earned as a real estate broker. This judgment was affirmed on appeal in the Supreme Court. From the affirmation of the judgment an appeal was taken to this court. The facts from which the cause of action arose are brief. They are not in essentials controverted. The defendant, on September 8th, 1919, owned the premises No. 189 Sixteenth avenue, in the city of Newark, New -Jersey. On that day he signed and delivered to the plaintiff a writing, of which, the following is a copj':
“Philip Ettinger, Agent.
“I hereby authorize the above to sell my property at 189 16th Ave., at a 3% per cent, rate, for $11,000.00, or any price above $11,000.00; provided said property is sold by Mr. Philip Ettinger within (30) thirty days from this date in accordance with my provisions of sale mortgage $4,000.
“Heyky A. Loux.
“Dated 9/8/1919.”
On September 13th, 1919, the owner of the property sold the same to a buyer unknown to, and not procured 'by, the plaintiff; immediately thereafter, the plaintiff was notified that the owner had sold the property, revoking the authorization of the plaintiff to sell.
It is an accepted rule of construction that a contract of employment does not give the broker an exclusive agency, unless it is so specified, either expressly or by implication. 19 Cyc. 265; 9 C. J. 623.
A general rule which is supported by the weight of authority is to the effect that when tire owner of real estate places it in the hands of a real estate broker for sale, he does not thereby relinquish his right to sell the property himself independent of the broker (4 R. C. L. 318, ¶ 56 9 Corp. Jur. 622); so., it is said, that when the broker is given an exclusive agency, as distinguished from an exclusive right to sell,
The authorities, however, on this vexed question, in the various jurisdictions, are not altogether in harmony. They will be found collected and compared in the notes in 19 L. R. A. (N. S.) 599; 21 Id 280; 38 Id. 370, and 49 Id, 999.
The conflict may, perhaps, be more apparent than real, when the different wordings in the broker’s written authorization to sell in the reported cases are compared and considered.
Those eases, which make the owner liable for a broker’s commissions, when the sale is made by himself within the time limit, are put upon the ground that the written authorization is a contract, that it implies an1 exclusive right to- sell within the time named, without the right of the principal to revoke the agency, unless there is a reservation to the contrary, as in Blumenthal v. Bridges, 91 Ark. 212, 215; 21 L. R. A. (N. S.) 282.
rttie revocation of the agency, either directly or by making a sale of the property, is a breach of the contract on the part of the principal, and renders him liable to the agent for damages which the latter sustains thereby.
On the other hand, that; class of eases which maintain the opposite doctrine hold that as the broker paid nothing, incurred no expense or loss, and entered into no obligation on Iris part, the broker was at liberty to act or not as he pleased; and would incur no; liability by failing to do' anything, as the court said in Goward v. Waters, 98 Mass. 596, the authorizaiion to sell is simply a naked revocable power. It is not a contract, either express or implied.
The conclusion we have reached in this case, and the principle on which it is based, find support and illustration in the following cases: Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, 385; Cadigan v. Crabtree, 179 Mass. 474; 186 Id: 7; Cronin v. American Securities Co., 163 Ala. 533, 539; Hammond v. Mau, 69 Wash. 204.
The judgment of the Supreme Court is. reversed.
Bor affirmance—Hone.
For reversal—Ti-ie Chancellor, Chief Justice, Swayze, Parker, Bergen, Black, Wi-tite, Heppenueimer, . Williams, Van Buskirk, JJ. 10.