
    SAMUEL LESSER, PLAINTIFF-RESPONDENT, v. MORRIS STOLMAN ET UX., DEFENDANTS-APPELLANTS.
    Argued January 20, 1926
    Decided March 5, 1926.
    Sale of Real Estate—Agent’s Commissions—The Agreement for Sale and Commissions Examined and Found to Comply With the Statute of Frauds, and to be Otherwise Sufficient for the-Jury to Consider.
    On appeal.
    Before Justices Parker, Minturn and Black.
    Por the appellants, Atitenrieth & Gannon.
    
    Por the respondent, James J. Kearney.
    
   Per Curiam.

This is an appeal from a judgment entered in the Pirst District Court of Jersey City in favor of the plaintiff-respondent for $500 commissions as real-estate broker for procuring a buyer for premises known as No. 266 Duncan ave-' nué, Jersey City,' New Jersey. The case was tried by thé court without a jury. 'The appellants file eight reasons why' the judgment should be reversed. They are argued under three heads in the appellants’ brief. They all attack the legal effect of the authorization or writing (Exhibit PI) relied upon by the plaintiff, as the basis of the action. Exhibit PI is as follows:

Exhibit PI.

“August 29, 1924.

' Beceived from Louis & Anna Schair the sum of $100 (one Hundred dollars) as a deposit on store, stock, fixtures and good will, also building consisting of store and three families, situated at 266 Duncan Avenue, Jersey City, N. J. Contract to be drawn at the office of Thomas Boss, No. 1 Exchange Place, Jersey City, N. J., between the hours of 10 in the morning and 4 in the afternoon, Wednesday, September the 3rd, 1924, or otherwise agreed. The following conditions to be incorporated in the contract. Price........,. $14,500

Cash..................... $4,500

1st mortgagee ............ 5,600 Bldg. & L.

2nd “ • ............ 4,400 for 3 years.

$14,500

Same to be free and clear of all encumbrances and encroachments and additional $400 to be paid on the signing of the contract making the total deposit on signing of the contract $500. Commission to be paid to Samuel Lesser, 83 Coles Street, Jersey City, N. J., broker, the sum of $500.

Title to pass on or before 60 days after signing the contract. Balance on slicing machine to be paid by buyer.

Signed Morris Stolman.

Wit.

Jennie Stolman.

Albert Pakross.

We, Louis & Anna Schair, hereby authorize Samuel Lesser, broker, to give owner of 266 Duncan Ave., Jersey City, N. J., $100 as a deposit subject to the above conditions and agree to return said sum to him on Wednesday, September the 3rd, 1924.”

The attack made upon Exhibit Pi by the appellant is based upon three grounds:

First. That said writing did not comply with the requirements of section 10 of the statute of frauds, as amended Pamph. L. 1918, p. 1020.

Second. The writing relied upon was a mere receipt for a deposit directed to a prospective purchaser, and as- such would not constitute a compliance with section 10 of the statute of frauds.

Third. The writing is a mere executory agreement, if anything, which contemplated the execution of a formal contract, and, therefore, could be rescinded by the defendants at any time prior thereto. None of these points, we think, are well taken. The case of Heyman v. Stopper, 85 N. J. L. 128; affirmed, 86 Id. 357, relied upon by the appellants is not in point. It was not error for the trial court to refuse to non-suit the plaintiff or direct a verdict in favor of the defendants. On the facts the trial court found in favor of the plaintiff. We think the court was justified in so finding. The judgment of the Eirst District Court is therefore affirmed, with costs.  