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Lippincott v. Content

Decided: September 22, 1939.

G. HOWARD LIPPINCOTT, PLAINTIFF-APPELLANT,
v.
HARRY CONTENT, DEFENDANT-APPELLEE



On appeal from the Supreme Court.

For the defendant-appellee, McCarter & English (George W. C. McCarter).

For the plaintiff-appellant, Parsons, Labrecque & Borden (Theodore D. Parsons).

Wolfskeil

The opinion of the court was delivered by

WOLFSKEIL, J. This appeal is from a judgment entered on a verdict directed by the trial court for the defendant, as owner of property, in the suit of plaintiff, a real estate agent, for a commission with respect to sale of the property. The controlling facts are not disputed. The case primarily involves construction of phraseology in the agreement relating to the commission.

The original contract between the owner and the proposed purchaser of the property was later modified to arrange for the filing by the owner of a suit in Chancery to quiet title, so as to give assurance of good title if that was possible, with the provision that if the owner was unsuccessful in the suit, the deposit should be returned and the agreement of sale be at an end. A subsequent stipulation further extended the

time for closing. The suit to quiet title was decided against the owner, and the decree was affirmed on appeal. Content v. Dalton, 122 N.J. Eq. 425. Through notice by the purchaser of termination because of such uncured defect in the title, the contract thereupon expired, and the sale was not consummated.

The agreement of sale contained the following language concerning the agent's commission:

"And the Seller hereby agrees to pay to G. Howard Lippincott a commission of 5% on the purchase price aforesaid, said commission to be paid in consideration of services rendered in consummating this sale; said commission to become due and payable upon closing title."

The subject of real estate commissions has been considered in numerous cases. The principle is well established that an agent becomes entitled to the commission when he has procured a purchaser able and willing to conclude the transaction on the terms authorized by the owner, and that in such circumstances a clause to the effect that the commission is payable upon closing title merely fixes the time for payment of the commission. Hinds v. Henry, 36 N.J.L. 328; Dermody v. New Jersey Realties, 101 Id. 334; Kram v. . Losito, 105 Id. 588; Steinberg v. . Mindlin, 96 Id. 206; Feist & Feist, Inc., v. Taub, 105 Id. 237. Persons, however, are free to insert their own limitations in the contracts they make, subject only to legality of the purpose, and the consideration of public policy. Contractees are necessarily bound by the express conditions they themselves choose to incorporate in a contract. When construction becomes an issue, the significance ascribed by the parties to the mooted language, or plainly to be inferred from their conduct, is strongly influential in determining the meaning which was intended between them, and that course is usually adopted by the court to be binding on the parties, since of their own accord they have made it obligatory on themselves. Albert v. Ford Motor Co., 112 Id. 597; Corn Exchange National Bank v. Taubel, 113 Id. 605; Thomsen v. Riedel, 114 Id. 379.

It would doubtless have been possible in this instance to indicate more clearly that closing of ...


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