Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
On April 6, 1954 the defendants duly executed a contract in writing by the terms of which they agreed to sell and convey and one William A. Ferguson agreed to purchase the business of the defendants together with the associated real and personal property identified as Bay Shore Bar and Restaurant, situate on Pelican Island, Dover Township, Ocean County, for the price of $61,650.
An acquaintance with paragraph 16 of the contract is imperative. It reads:
"16. The Sellers agree to pay to ABRAHAM TODISS, 521 Cooper Avenue, Camden, N.J. and FRED SIRIS, 315 Market Street, Camden, N.J., Licensed Real Estate Brokers, a commission of $1,650.00, which said commission shall be paid on the date of settlement and shall be paid 50% thereof to Todiss and 50% thereof to Siris. It is understood and agreed that this commission is contingent upon the transaction being consummated and in the event that said transaction is not consummated then and in that event no commission shall be payable to said brokers."
We italicize the portion of the paragraph to accentuate immediately its supreme significance in the consideration of the legal problem submitted for determination by the present appeal.
The additional facts of essentiality may be summarized as follows:
1. Upon the execution of the contract the down payment of $6,165 was pursuant to a requirement thereof deposited with the vendors' attorney "in escrow pending final settlement."
2. The bill of sale and the deed of conveyance were to be delivered by the vendors and the purchase price paid by the vendee on May 12, 1954 at the time and place designated in the contract.
3. The vendors, the defendants in this action, were ready, able and willing to perform the contract, but almost immediately after its execution the vendee, Ferguson, "advised (the vendors) that he was not going through with the transaction because of poor health and because of the weight of his other work and responsibilities."
4. In that exigency the parties to the contract mutually agreed as evidenced by written releases dated April 14, 1954 that the vendee forfeit unto the vendors the escrow fund of $6,165 and that the contract be rescinded by mutual accord.
5. In consequence the sale contemplated by the contract was not consummated on May 12, 1954 or subsequently.
6. The contract did not contain any clause relating to the penalty, forfeiture, or ...