Clapp, Jayne and Hughes. The opinion of the court was delivered by Jayne, J.A.D.
Factual dissimilarities often demand legal distinctions, and in the process of ironing them out great circumspection must be employed lest a new wrinkle is put in for every one smoothed out. In the present case we are informed that on May 28, 1956 the defendants contractually engaged in writing the services of the plaintiff as a realtor to solicit and procure for them a purchaser of the premises designated as Nos. 26 and 28 Elmwood Avenue in the Town of Irvington, Essex County, New Jersey. In literal confirmation of their agreement the defendants subscribed their respective signatures to the following written memorandum:
"In accordance with our conversation, this will authorize you to represent us as our Exclusive Agent for the Sale of the land and building which we own at 26 & 28 Elmwood Ave. Irvington.
This Agreement shall be effective May 28 1956 and will operate until June 28 1956.
We agree that the sale price for the premises will be 113,700. In the event that you succeed in selling this property for us for this or any other price that we may agree to accept, we will pay you a commission equal to 5% of the total purchase price if, as and when title to the property actually passes to the purchaser , whether that purchaser is produced by you, any other broker, or by us direct during the term of this Agreement.
We ourselves have italicized those portions of the verbiage of the memorandum which snapshot preliminarily the particularly significant characteristics of the employment agreement.
The acknowledged eventualities were that the plaintiff in pursuance of his authorization actually obtained for the defendants a satisfactory purchaser ready, able and willing to acquire title to the premises for the specified price. The conveyance of the property, however, failed of consummation for reasons somewhat singular.
By means of the prosecution of this action, the plaintiff has a judgment against the defendants for his brokerage commission in the sum of $5,685, the legal and factual propriety of which we are requested by the defendants to investigate.
In rationalizing the problem, let us begin at the beginning with the realization that in the absence of some qualifying or oppugnant expression in the contract of employment, a broker who is duly engaged earns his commission when he procures for the owner a purchaser ready, able, and willing to comply with the terms specified in the authority thus conferred, or with other or different terms which, however, are satisfactory to the owner. Marschalk v. Weber , 11 N.J. Super. 16, 21 (App. Div. 1950), certification denied 6 N.J. 569 (1951); Alnor Construction Co. v. Herchet , 10 N.J. 246, 253 (1952); ...