Price, Sullivan and Foley. The opinion of the court was delivered by Sullivan, J.A.D.
This action grows out of a dispute as to whether defendants are liable to plaintiffs for a real estate brokers' commission. On a motion to dismiss made at the conclusion of the plaintiffs' case, the trial court ruled that the commission never became payable and entered judgment in favor of defendants. Plaintiffs appeal.
The case is presented to us on an agreed statement in lieu of record from which we glean the following: On October 21, 1958, one Stuart H. Keyes of Vermont as purchaser, and defendants as sellers, entered into a written
contract covering certain real property located in South Plainfield, New Jersey. The agreement fixed a purchase price of $15,800, and also provided that it was subject to the purchaser's obtaining by January 5, 1959 a conventional 20-year direct reduction plan mortgage for $10,800, with interest at 5 3/4%. It was further provided that the $1,000 deposit made by the purchaser was to be held in escrow by the realtor and paid to the sellers if the mortgage contingency was met. Closing date was on or before February 5, 1959.
The agreement recognized Patrick L. Hedden as the realtor on the contract. However, it was stipulated at the trial that plaintiffs were "the realtors who effected said sale." The agreement contains the following commission clause:
"The Seller agrees to pay the named Realtor, for services rendered in procuring this sale, a commission of 6% on the purchase price, same to be due and payable at time of closing and passing of title."
On October 22, 1958, upon entering into the aforesaid contract, the purchaser made application to the Queen City Savings and Loan Association of Plainfield for a mortgage loan in accordance with the terms and conditions of said contingency. On October 30, 1958 said Savings and Loan issued a commitment, expiring 60 days from date, for a mortgage on the terms of the application. The commitment required written acceptance by the applicant before becoming effective. Upon issuance of the commitment the $1,000 deposit was delivered to defendants by the realtor.
Shortly after the commitment was issued the purchaser notified the realtor that "he didn't want the property, that he wasn't going through with the deal," and the mortgage commitment was never accepted. Defendants, through their attorney, attempted to bring about a closing, even to the point of making time of the essence and setting February 5, 1959, as the closing date. The purchaser, however, did not
appear at the time and place fixed, and the sale was not consummated.
At the trial an officer of the Savings and Loan testified that the commitment could have been extended but that no such request was made in this instance.
In its letter opinion the trial court stated that the buyer was never ready, able and willing, and further that the mortgage commitment expired before title was closed. In view of the provision in the contract dealing with a realtor's commission, the court concluded that said commission never became payable. The trial court did not specifically rule that the mortgage contingency provision had not been satisfied, but the opinion ...