McGeehan, Eastwood and Freund. The opinion of the court was delivered by McGeehan, S.j.a.d.
This action was brought to recover a brokerage commission under an exclusive agency contract. A motion to dismiss the action, made at the trial, was granted and from the judgment entered pursuant thereto the plaintiff has appealed.
The contract authorized the plaintiff to sell the property for $17,000 and provided that it should receive a commission of 5% of the selling price. The plaintiff delivered to the defendant a $500 cash deposit and a writing, signed by E. Stuart Campbell and Emmet T. White, Jr., as purchasers, which provided:
"* * * hereby agrees to purchase the premises described below, at price and terms hereinafter stated, and to be bound by this offer immediately upon its acceptance by the owner.
"Description: 47 Myrtle Avenue, Irvington, N.J.
Deposit acknowledged, subject to owners ac-
Cash to be paid 19 2,500.00
Cash on delivery of deed free and clear of all
encumbrances except as hereinafter stated $GI Mortgage at 4% interest to be obtained 14,000.00
Other Financing $Total Purchase Price $17,000"
The defendant refused to accept the $500 cash deposit and the written agreement and returned them to the plaintiff's agent. There is no evidence that the defendant made or agreed to make any change in ...