On defendant's appeal from the Supreme Court.
For the appellant, Augustus S. Dreier (John P. Owens, of counsel).
For the respondent, Benjamin Newman.
The opinion of the court was delivered by
WELLS, J. This is a suit for commissions claimed to have been earned on the sale of three building lots from a tract of land, known as "Fairview Park," Hanover township, Morris county.
The defendant was not the owner of the tract of land in question but was the exclusive agent to sell the same for the G.C.T. Corporation, the owner, for which he was to receive a commission of thirty per cent. on the sale of lots.
Defendant had a written agreement with the G.C.T. Corporation to this effect, which was offered in evidence and tentatively admitted by the trial court and marked Exhibit P -1.
By the agreement entered into between plaintiff and defendant (Exhibit P -2), plaintiff was authorized to sell lots from this "Fairview Park" tract for defendant and was to receive a commission of twenty per cent. on the purchase price of all lots sold by him for or on defendant's behalf, and an additional commission of five per cent. on the purchase
price of all lots sold by him where defendant, who was a builder, obtained a contract for the erection and construction of a building thereon for the purchaser of said lot.
The suit is for commissions on sales of lots (1) to Hopping, (2) to Clark, and (3) to Larkin. Houses were erected upon all three of these lots by the defendant.
The defendant admits that the Hopping contract of sale was procured through the instrumentality of the plaintiff but insists that since Hopping didn't fulfill the terms of the contract, plaintiff has not earned his commission but that if and when Hopping does go through with the deal, then plaintiff will be entitled to his commission on the sale of that lot.
This, however, is not the contract between plaintiff and defendant, which provides that fifty per cent. of all cash received by defendant on account of the purchase price of any and all lots is to be paid to plaintiff on account of commissions, until the commission was paid in full.
It is admitted that the purchase price of this lot was paid in full to the G.C.T. Corporation but defendant claims that Hopping paid only $260 on the contract price of $1,200 and that he had to take over the contract and pay the balance, and that since Hopping had not been able financially to carry out the terms of the contract, the defendant is not obliged to pay a commission to plaintiff on the Hopping lot.
We do not so understand the law. All the plaintiff was bound to do to earn his commission was to bring the parties together and get them to make a binding agreement.
Having accepted Hopping as a purchaser on terms suitable to the G.C.T. Corporation, the defendant cannot escape paying plaintiff a commission by saying that Hopping was unable to conclude the bargain. Freeman v. Van Wagenen, 90 N.J.L. 358; Homan v. Griffin, 94 Id. 345; Clark v. Griffin, 95 Id. 508.
We conclude, therefore, that the court was fully justified in charging the jury that the Hopping contract was made as a result of the services of the plaintiff who had brought the parties together and that the sale was made, and that with
respect to the Hopping transaction the commission had been earned by plaintiff and was due on that sale.
This conclusion disposes adversely to defendant of his exception to the court's refusal to charge as requested by defendant that --
"If you find that a purchaser was obtained by the plaintiff, but said purchaser was unable financially to carry out the terms of the contract, then you must ...