Shapiro v. Canada

The opinion of the court was delivered by Trenchard, J. This is an appeal from a judgment rendered by the judge of the District Court, sitting without a jury, in an action brought by the plaintiff-respondent, a broker, against the defendant-appellant, to recover commissions for the sale of real estate of the latter. We are of the opinion that the judge erred in holding that the memorandum upon which the action is based complied with the statute of frauds, and, consequently, in finding for the plaintiff. - The memorandum is as follows: *426 “May 1, 1924. The undersigned agrees to pay a commission of 3%% for his services of sale of my property located at No. 65 Shepard Avenue, Newark, N. J., to T. Grunt, which sale already has been made. Minnie K. Canada.-” The pertinent part of the statute which defendant at the trial contended, and now contends, precludes recovery, is as follows: “No broker or real estate agent selling or exchanging land for or on. account of the owner shall be entitled to any commission for the sale or exchange of any real estate, unless the authority for selling or exchanging such land is in writing, and signed by the owner or his authorized agent, or the authority of the broker or real estate agent to make a sale or exchange of such land, is recognized in a -writing or memorandum signed by the owner or his authorized agent, whether or not such writing or memorandum is signed by said owner or agent before or after such sale or exchange has been effected, and the rate of commission on the dollar shall have been stated therein; * * * .” Gomp. Slat., p. 2617, § 10, as amended by Pamph. L. 1918, p. 1020. Now, it will be seen that the writing or memorandum in question did not purport to confer, and did not confer, any auihorikj upon the plaintiff to sell the real estate in question, nor was such authority recognized thereby, and we think that this case is controlled by the principles laid down in Heyman v. Stopper (1913), 85 N. J. L. 128; affirmed, 86 Id. 357, where a writing, similar in all essential respects, was under consideration. There Mr. Justice Voorhees, speaking for the court, said: “I find no authority in it [the writing] for selling or exchanging this land, nor is the authority of any broker or real estate agent recognized by it. There is, in my opinion, no written authority for any broker to sell the land. Is this made good by the fact that the writing was delivered to a *427 certain broker? It strikes me not, for the act says that ‘no person shall be entitled to any commission unless his authority for selling is in the writing, and his authority to make a sale is recognized in the writing.’ I fail to find these necessary preliminary steps in the writing.” In that case, as in this, the writing was not addressed to anyone, nor was any broker mentioned therein. True, in that case the memorandum was given before the sale was made, while in this case the memorandum was given after the sale. But this fact makes no substantial difference, because the act of 1918 provides that the authority must be given or recognized in a writing “whether or not”, signed “before or after” such sale has been effected. The judgment below. will be reversed and a new trial awarded.