Four-G Corp. v. Ruta

Heher, J.

(dissenting in part). I concur in the reasoning and conclusion that plaintiff is entitled to specific performance upon the payment of the agreed price, in cash and by the stipulated security of bond and mortgage, less the credit for the $900 deposit under the lease; but I would give credit also for the broker’s commission arising out of the same transaction.

We need not consider the rule in other and different circumstances. Here, the asserted obligation to the broker was not challenged below, nor was there any contention of its nonexistence, either in whole or in part, on the submission of the issue to this court. The respondents’ brief merely states that the “option agreement is barren of any reference to real estate broker’s commissions and obviously the plaintiff was without right to deduct these from the purchase price.” This is the sum of the argument; the absence of express authority in the “option agreement” barred credit for the chose in action.

Unless there be a defense to the broker’s claim for commission, then the principle for the avoidance of multiplicity of suits and circuity of action comes into play. This doctrine would seem to be applicable here, certainly so now that the right to specific performance is established, Pom. Eq. Jur., 5th ed., § 243; Story's Eq. Jur., 11th ed., § 64k; Hampton v. Phipps, 108 U. S. 260, 2 S. Ct. 622, 27 L. Ed. 719 (1883), the more so under the merger of law and equity functions in the Superior Court effected by the 1947 Constitution.

For reversal — Chief Justice Weintbaub, and Justices Hehee, Wacheneeld, Bueling, Jacobs and Pkoctoe — 6.

For affirmance — None.