Lora, Allcorn and Byrne. Allcorn, J.A.D. (dissenting).
Decedent William H. Kennedy was a licensed New Jersey real estate broker whose salesman, William J. Kennedy, negotiated the sale of the Surfrider Motel in May 1970 by the defendant sellers to James and Faye Mancini.
The sale price was $300,000 and the agreement of sale dated May 6, 1970 called for the payment of $5,000 upon the signing of such agreement and an additional sum of $35,000 on or before May 9, 1970, at which time the buyers were to
take over possession and operation of the motel. The balance of the purchase price was to be paid, with interest at 7 1/2% a year; $35,000 on September 15, 1970 (later modified to $20,000 on September 15, 1970 and $15,000 on September 15, 1971); interest only during 1971 and $11,250 plus interest on September 15, 1972, at which time title would be transferred and a $213,750 mortgage would be taken back by the sellers.
Plaintiff-appellant's commission was provided for under paragraph XIV of the agreement which stated:
It is understood and agreed between the parties that the real estate agent responsible for the sale is William Kennedy, realtor, and the Sellers agree to pay a commission to William Kennedy, realtor, in the amount of $9,000.00 as follows: $3,000.00 on May 9, 1970, and $6,000.00 on September 15, 1970, without interest. * * *
The buyers paid defendants the sum of $40,000 and went into possession on May 9, 1970, and plaintiff was paid the initial $3,000 on account of his commissions. The record reveals the buyers operated the motel during the summer of 1970 but thereafter defaulted, never making the payment due on September 15, 1970. The sellers thereupon re-took possession of the premises and retained the $40,000 previously paid.
Notwithstanding the buyers' default plaintiff claims he is entitled to the additional $6,000 in commissions which were due him on September 15, 1970. Defendants contend the commissions were contingent upon the receipt of the payments on May 9, 1970 and September 15, 1970.
The agreement of sale provided with respect to a default by the buyer that:
In the event of the failure of buyer to comply with any of the terms hereof, and after 30 days written notice of demand by seller that said default be corrected, seller shall have the right to declare this contract null and void and it is expressly agreed that any and all monies paid by any means whatsoever hereunder, shall be and in such event are, hereby declared to be reasonable and proper rent for the premises in question for the period of occupancy by the buyer as may have transpired, and in such event buyer will immediately
vacate the premises without delay or hindrance, and upon failure to do so shall be a tenant (in default) of the seller, subject to the Landlord and Tenant Laws of the State of New Jersey. Upon tenant so vacating the premises, all items of personal property within the premises on ...