Opinion
05-03-1928
KOEHLER v. GILBERT.
Norman Harker, of Mt. Holly, for the motion. Louis B. Le Duc, of Camden, opposed.
Action by Herbert J. Koehler, receiver of J. R. Tucker, Incorporated, against Henry A. Gilbert. On defendant's motion to strike out the complaint. Motion denied.
Norman Harker, of Mt. Holly, for the motion.
Louis B. Le Duc, of Camden, opposed.
DONGES, J. Defendant moves to strike out the complaint.
The objection is offered that the agreement in question is not sufficient to meet the requirements of the statute of frauds. P. L. 1911, p. 703; P. L. 1918, p. 1020. The complaint alleges that the plaintiff, having authority to make sale of defendant's property, effected such sale, and on September 1, 1925, and thereafter, defendant executed and delivered to J. R. Tucker the following agreement:
"September 8, 1925.
"Mr. J. R. Tucker, Realtor, 313 Market Street, Camden, N. J.—Dear Sir: In consideration of your effecting a sale on the lot located at Haddon and Hopkins avenues, Haddonfield, I hereby agree to pay you a commission of 2 1/2 per cent., one hundred dollars ($100) of which is given you herewith, balance of four hundred and sixty-two dollars and fifty cents ($462.50) to be paid at time of settlement.
"Yours very truly,
[Signed] Henry A. Gilbert."
It is further alleged that Tucker procured the purchaser and in all respects performed the services for which the sum stated was to be paid. In my opinion, the motion cannot prevail. In view of the language of the statute above mentioned, a written authorization to sell is not required, but a written recognition of the authority for selling, together with statement of the person to whom the payment is to be made and the sum due. etc., is all that is required. It seems to me that, if the proofs support the complaint, plaintiff will be entitled to recover, under authority of Clark v. Griffin, 95 N. J. Law, 508, 113 A. 234, and Steinberg v. Mindlin, 96 N. J. Law, 206, 114 A. 451.
The motion is denied.