90 N.J.L. 358 | N.J. | 1917
The opinion of the court was delivered by
This is an action by a broker to recover commissions on a sale of real estate. On October 22d, 1913, John B. Van Wagenen, one of the defendants and tenants in common, signed a written agreement to pay the plaintiff a commission of lwo and one-half per cent, for the sale of the property. The defendants claim that this agreement was meant to apply only to a proposed sale to the Pennsylvania Railroad Company; that Ho such sale was made; that thereupon in December, 1913, the agreement for commissions was returned by Freeman to Van Wagenen and abandoned. In fact, the agreement was not produced at the trial; the plaintiff relied on what was said to be a copy which had been retained by bis lawyer. The point in this respect was that the agi cement had been abandoned by consent, although there are suggestions in the case and in the briefs that the defendant sought io vary ihe terms of the agreement by making it applicable only in case of a sale to the railroad. The learned trial judge rightly held that the evidence was not admissible for that purpose and put to the jury the real question whether the written authority was given up by the plaintiff, so as to render it of no effect.
Whether the authority was given up or not, the plaintiff continued his efforts to sell the property; lie claims, of course, that lie was acting under the written authority; the defendants claim that he was acting only under a verbal authority from John B. Van Wagenen, whose agency for all the tenants in common is not disputed. As a result of the plaintiffs efforts, a prospective purchaser was procured in the person of Cobh. Pending the actual execution of a contract for sale with Cobb, the plaintiff produced, in March, 1914, another purchaser—Scherer—who offered a higher price; with him the defendants made a formal written contract on March 14th, 1911, for the conveyance of the land, and received $1,000, on
We find no error; the judgment is affirmed, with costs.