On appeal from a judgment of the Cape May County District Court.
For the appellant, Lloyd, Horn & Perskie (by David M. Perskie).
For the respondent, W. Russell Epler.
Before Justices Case, Donges and Porter.
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment in favor of the defendant entered in the Cape May County District Court after a trial before the judge without a jury.
Plaintiff, being the owner of certain real property, listed it for sale with the defendant, a licensed real estate broker. Defendant procured prospective purchasers and a written agreement for the sale of the lands was executed. The time fixed for settlement in the agreement was August 25th, 1941, and before that date the purchasers deposited with the defendant the agreed advance deposit of $350. From this sum the defendant retained $160 as his commission of five per cent. of the sale price and forwarded the balance to plaintiff.
Transfer of title never took place because, in the language of the stipulation, "The purchasers named in the agreement
were unwilling to and did not complete the purchase of the property, and are still unwilling to complete the said purchase." The prospective purchasers forfeited their deposit of $350, in accordance with the provisions of the contract of sale. About eight months later plaintiff made demand on defendant for the amount retained as his commission, and, upon refusal, instituted this action which resulted, as stated, in a judgment for defendant, from which plaintiff appeals.
The points argued are (1) since the sale was never consummated the real estate broker was not entitled to his commission; and (2) the defendant is not entitled to a commission because he did not produce a purchaser ready, willing and able to complete the sale.
The provision of the contract of sale respecting commissions was as follows: "The seller agrees to pay William T. Dayton a commission of five per cent. of the sale price for consummating the sale." The appellant contends that this language, "consummating the sale," means consummating the transfer of title, by execution and delivery of the deed of conveyance from the seller to the purchaser.
The general rule in this class of cases is stated in Dickinson v. Walters, 100 N.J.L. 62, as follows: "The law is firmly settled in this state that a real estate broker earns his commission when he secures a buyer on the sellers terms, either as originally propounded or as settled by agreement between the seller and buyer." And further: "In order to absolve a party from the payment of commissions, it must clearly appear by the ...