Goldmann, Foley and Molineux. The opinion of the court was delivered by Molineux, J.c.c. (temporarily assigned).
This is an appeal from a judgment awarding plaintiff a real estate commission on a sale of defendant's home. The case was tried below without a jury on a stipulation of facts and on depositions together with certain exhibits hereinafter mentioned.
Defendant, desirous of selling her property, signed a multiple listing agreement in a form drawn up and used by the Westfield Board of Realtors. The pertinent provisions of the listing agreement were as follows:
"TO ALL ACTIVE BROKER MEMBERS
WESTFIELD BOARD OF REALTORS,
In consideration of the listing broker listing said property with all the active broker members of Westfield Board, and of their efforts to find a purchaser or tenant for same, the undersigned, as owner, hereby gives to said active broker members of the Westfield Board of Realtors the exclusive right to sell, lease or exchange the property described on the reverse side hereof, at the price and on the terms as therein stated, and the undersigned further agrees to pay to the listing broker, or to the active broker member of said Westfield Board making the sale, lease or exchange, a commission on said price or rental, or on any other price or rental accepted, at the rates established by the said Board as herein set forth if the property is sold, leased or exchanged by an active broker of said Board, by me, the owner, or through any other source before this agreement expires.
The payment to the listing broker member, or to any other active broker member of said Board, who shall make the sale, lease or exchange, shall release the subscriber from all claims of, or liabilities to, any of the active broker members of said Board for the said
respective commission or commissions so paid on said sale, lease or exchange of said property.
Commissions on sales or exchanges shall be due and payable on date set for closing of title.
This agreement is made for the benefit of all the active broker members of the Westfield Board of Realtors."
(Emphasis added. The italicized phrase was typed in place of "when the price and terms are arranged between the buyer and ...