Decided: November 20, 1947.
JOHN J. FOSTER, PLAINTIFF-APPELLANT,
FRANK YODICE, DEFENDANT-RESPONDENT
For the plaintiff-appellant, Rubenstein & Nardella (Joseph J. DeLuccia).
For the defendant-respondent, Earl T. Milsop and Mortimer L. Mahler.
Before Justices Bodine, Heher and Wachenfeld.
[136 NJL Page 306]
The opinion of the court was delivered by
BODINE, J. The appeal is from the District Court. Suit was brought for commissions earned under a contract for the exclusive sale of No. 126 Jasper Street, Paterson, New Jersey. So far as pertinent, the agreement provided as follows: "I agree to pay you in cash a commission of 5 per centum of the price obtained, if purchaser is procured during said period, by you or by me, or anyone else, upon the terms named or upon any other price or terms as to time or mode of payment which said purchaser and I agree to." On the reverse of this agreement, at the foot thereof, appear notations made by the broker as follows:
Price Will Trade Terms, etc. Com.
6000 Will Trade All Above Mtge. 5
A sale was made by the owner during this period; hence the suit.
[136 NJL Page 307]
Evidence was admitted that commissions were only to be paid upon the purchase price above the mortgage which amounted to the sum of $4,900. The court so found.
Plaintiff was dissatisfied with this verdict and appeals, urging there was trial error in the admission of parol evidence which varied the terms of the written agreement.
Defendant's contention is that the written instrument was ambiguous and called for explanation. This is asserted because of the notations on the back of the instrument. This we think is so.
The plaintiff testified, over objection, that an agreement existed to limit commissions to a sum received above the mortgage. Later he retracted this statement. The defendant so testified. The notation on the back of the agreement is capable of that meaning and justified the rejection by the trial court of the retraction of the admission of limitation.
The judgment is affirmed.