Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
The issue in this cause concerns the legal propriety of a judgment against defendant individually representing commissions earned by plaintiff Sherman, a real estate broker, on the sale of certain property owned by a corporation of which defendant is president.
The factual framework must be outlined in order to present an understandable view of the case. During the period with which we are concerned, the Perfection Development Company, a corporation, was the owner of a tract of land of slightly over 58 acres in Bordentown, New Jersey, and defendant, Milton Josephson, an attorney, was its president. More specifically, in his answer to the complaint Josephson admitted that he was the "principal and only real stockholder" of the corporation.
In the summer of 1954 Josephson requested Sherman to sell the property "for him." Sherman agreed and was given the particulars, including the asking price of approximately $1,700 per acre. There was no disclosure of title in the Perfection Development Company. On the contrary, the indication was that Josephson occupied the status of owner. Sherman busied himself in the quest for a buyer and early in August produced one Henry Aaronson of New York as a buyer. A sale price of $87,000 was agreed upon and on August 2 Josephson drew the contract in his office. The corporation was named as owner and vendor. This was the first awareness Sherman had that title was not held by Josephson. Execution of the document was done in this fashion:
"The Perfection Development Company
On August 5 Sherman called at Josephson's office and pointed out the absence of any clause in the agreement recognizing him as the broker and fixing the amount of his commission. Apparently the oral understanding was that 10% of the sales price would be the rate. However, at Josephson's suggestion the earned amount was reduced to $8,000, whereupon the stipulation was reduced to writing in the following form prepared by him:
"Perfection Development Co.
This will confirm our understanding that I am to receive a commission for the sale of the Cemetery tract to Aaronson associates in the sum of $8,000.00 provided that the buyers actually purchase the property and pay for the same and the commission shall be payable pro rata as you receive the proceeds.