Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Eastwood, S.j.a.d.
The plaintiff instituted this action for the recovery of a broker's commission on the sale of defendants' property.
The appeal is presented on the Essex County District Court's statement of facts, findings of fact and conclusions of law. The respondent failed to file an answering brief.
We find no substantial discord in the facts. The plaintiff produced a customer, to whom the following receipt was given by defendants for his initial deposit of $50:
"Mrs. Toldt agrees to sell the property at 38 Coit Street, Irvington, N.J. to Mr. Joseph Scola for 15,500. Mrs. Toldt accepts a deposit of 50 dollars in cash. The deposit is tendered subject to the drawing of suitable contracts.
In conformity with the receipt, a written agreement was prepared and executed by the sellers and the buyers, which, inter alia , provided for a down payment of $1,500, and for the payment of the plaintiff's commission in the following language:
"And the Seller hereby agrees to pay to Irving Winter 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 the execution of the deed and the closing of title."
At the time the owners executed the agreement, the plaintiff took into his possession the original copy, suggesting to the defendants that they hold the purchasers' executed copy until they had paid the $1,450 balance of the down payment. This balance was never paid, although the plaintiff urged the Scolas to do so, finally informing them they must put up the balance of the deposit, and an opportunity was given them to do so upon their promise to withdraw the money from their savings, but the promise was never fulfilled. It was only after the plaintiff had seemingly exhausted his endeavors to persuade the buyers to consummate the transaction and the defendants had refused to adopt his recommendation to institute an action for specific performance, that the plaintiff discontinued his further efforts to close the ...