Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
The plaintiff, a real estate broker, instituted the present action to recover a commission for the sale of certain real estate owned by the defendant. The commission in the aggregate totals the sum of $11,090.40. The defendant admits that he agreed to pay a commission provided the sale was consummated at the price of $7,000 an acre. He denies that the plaintiff performed his agreement and states that it was necessary to negotiate a new contract with the purchaser on less favorable terms. Plaintiff was awarded summary judgment for a part of the commission and the defendant appeals and the plaintiff cross appeals.
The facts are substantially undisputed. Warren Mack entered into a written commission agreement dated May 16, 1956, with the defendant Joseph G. Revicki, the owner of the real estate in question. The commission agreement recites that Mack negotiated the sale of the premises to Sylvan Builders, Inc., and that a written contract, dated the same day as the commission agreement, was entered into by the defendant for the sale of the property to Sylvan Builders, Inc. The commission agreement further states that Revicki recognized Mack as the "broker who consummated the contract
for the sale and who is entitled to receive a commission for the sale in the event the title is closed." The agreement expressly provided, in consideration of the premises, as follows:
"1. Joseph G. Revicki does hereby agree to pay a commission of 6 1/2% of the total purchase price as established by the contract for the sale of the said premises, less $2050.00, payable only if, when and as title passes, as follows:
(a) At the time of the closing of title of said premises, 6 1/2% of that portion of the principal sum of the purchase price paid by the purchaser to Joseph G. Revicki, on the agreement of sale, and
(b) At the time each and every payment of the mortgage principal is made, 6 1/2% of the principal of each and every payment made to Joseph G. Revicki on the purchase money mortgage set forth in the attached agreement for sale between Joseph G. Revicki and Sylvan Builders, Inc. * * * Notice of each mortgage payment with full particulars and payment of the required commission shall be immediately given by Joseph G. Revicki to Warren Mack upon such mortgage payments."
Revicki, by his written contract dated May 16, 1956, agreed to sell to Sylvan Builders, Inc., the premises consisting of 28.88 acres of vacant land for "$7,000 per acre or proportionate part of an acre." The purchaser, pursuant to the contract, paid the deposit of $20,000. The contract provided for the closing of title on August 15, 1956, but the title not having closed, the defendant by letter made time of the essence for the title closing which was consummated on January 16, 1957. On the closing of title the purchaser was allowed an abatement of $10,000 on the purchase price and he executed to the defendant a purchase money mortgage for the balance due of $143,533.60 after an additional payment of $28,045.70, including adjustments for taxes and revenue stamps.
Subsequent to the execution of the commission agreement and contract of sale on May 16, 1956, the following events took place. On November 29, 1956 the defendant's attorney wrote to Mack stating that he recognized him as the broker and that if the contract was assigned to another developer and there was another broker, no additional broker's commission would be paid by Revicki and any adjustment of
commissions would have to be made with Mack's consent and approval. It further stated that Revicki was becoming impatient with the delay in the transaction; that the compensation for commission was dependent upon final consummation of the sale and "we would suggest that you get on the job and do whatever you may be able to in order to get this matter closed." On December 7, 1956 Mack replied that no representative of the vendee had communicated with him regarding an assignment of the purchase contract, and that there were no further details to receive attention as the title was ready to be closed. Thereafter, no further letters were addressed to Mack.
In response to the defendant's letter of December 26, 1956, making time of the essence to close the title, the vendee's attorney replied on January 9, 1957, stating that "the cost of improvements as required by the municipality * * * exceeds by approximately $30,000" the cost as estimated on the representations of the defendant and requested that there be an abatement in the purchase price in the amount of the excess cost. Revicki's attorney, under date ...