Summary
holding that a broker was not the efficient cause in the sale after a seven-and-one-half month hiatus in negotiations
Summary of this case from Best Bergen Homes, Inc. v. NunezOpinion
Submitted February 17, 1928 —
Decided May 14, 1928.
On appeal from the Supreme Court, Essex county, referred to the Circuit Court for trial, and in which Judge Dungan delivered the following opinion:
"I have never understood that the commissions of the broker were earned by the mere introduction of a buyer to the owner of real estate or lessor of real estate, but that the broker must have been, in the words of the cases, the efficient procuring cause of the contract between seller and purchaser, lessor and lessee. Substantially what has been shown in this case is that there was a meeting at the office of Murray Apfelbaum on the 27th day of July, 1925, at which an attempt was made to get Mr. Bernstein and Mr. Lobel together. The intending lessee offered a maximum of $26,000; Mr. Bernstein offered a lease for $28,000 a year, and that is the nearest they got together. They left the office of Mr. Apfelbaum with those figures. That is all there was to the negotiations at Mr. Apfelbaum's office except as to the $15,000 deposit, which seemed to be satisfactory to the parties. It appears that over seven and a half months later a lease was made between these parties, which was upon terms entirely different than those discussed in Mr. Apfelbaum's office. For instance, the only term discussed at Mr. Apfelbaum's office was the balance of the term of Mr. Bernstein's lease, which was more than sixteen years. Nothing was said at the Apfelbaum office about a lump sum which was to be paid in addition to the lease by Mr. Lobel to Mr. Bernstein, while in the lease, which was actually executed, the term is only five years and two months. Instead of being $28,000 a year it amounted to $29,000 a year, which was $14,500 to Mr. Bernstein's lessor, and $14,500 to Mr. Bernstein, and, in addition to that, a lump sum of $28,000 was agreed to be paid, and was paid, because Mr. Bernstein says he received it from Mr. Lobel. This was an entirely different contract from anything that was discussed at the office of Mr. Apfelbaum; but, perhaps, more decisive than that — and, perhaps, if that was all there was in the case, it would be sufficient to go to the jury. That the plaintiff was not the efficient and procuring cause is certainly shown by the testimony of Mr. Pikon, who says that he continued his efforts with Mr. Bernstein and with the firm of Kislak for about two weeks, to use his own words, he discontinued his efforts as to Lobel and he talked with Mr. Bernstein about other property. Mr. Flood, who carried on the negotiations for his firm, says that he continued his efforts for about three weeks, and that he discontinued his efforts and that he dropped the negotiations.
"It seems to me that there is no question in this case that there are no inferences from which the jury could find that Apfelbaum or Kislak, acting with Apfelbaum, was the efficient procuring cause of this lease which was actually executed between these parties in May, 1926.
"The result of these views is that a nonsuit must be granted."
For the appellant, Israel B. Greene.
For the respondent, Osborne, Cornish Scheck.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Judge Dungan in the Circuit Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, CAMPBELL, LLOYD, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 16.
For reversal — None.