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Fry v. Doyle

Decided: May 31, 1977.

HARRY W. FRY, T/A H.W. FRY REALTY COMPANY, PLAINTIFF,
v.
WILLIAM J. DOYLE, INDIVIDUALLY AND T/A WILLIAM J. DOYLE ENTERPRISES AND ELIZABETH F. JUNG, INDIVIDUALLY, SEVERALLY, AND IN THE ALTERNATIVE, DEFENDANTS



Wells, J.c.c., Temporarily Assigned.

Wells

Plaintiff realtor sues defendants Doyle (buyer) and Jung (seller) for commissions allegedly due on the sale of 64 acres of land situate in Westhampton Township, Burlington County, New Jersey. The facts are largely undisputed, but the inferences to be drawn from the facts in light of the legal framework of the transaction give rise to the issues to be resolved.

On June 1, 1971, as the result of plaintiff's services, defendant Jung and C.W. March Realty Co., Inc. (hereinafter referred to as March), as buyer, entered into an option by which March secured the right to buy Jung's 64 acres of land on or before September 1, 1971, and for three successive one-year periods thereafter. March extended the option for each such period to its final expiration date of September 1, 1974. If and when exercised the option became a binding agreement of sale for the land at increasing prices per acre ($8,000 an acre from September 1, 1973 to September 1, 1974), and required March to pay 29% down in cash at settlement 60 days after exercise of the option and give Jung a note and mortgage for the balance payable in two equal annual installments at 7% interest.

In an addendum to the option Jung agreed to pay plaintiff a commission of 10% on the "gross sale price or any part thereof." The addendum did not contain a provision for commissions in the event of a post-expiration sale between the parties to the option. Since plaintiff had no listing agreement, the aforesaid addendum is the sole contractual basis of plaintiff's claim. In an entirely unrelated transaction in 1973 defendant Doyle lent March $100,000 secured by an assignment of March's interest in the option on Jung's land. March defaulted on the loan and on June 18, 1974, 2 1/2 months prior

to expiration of the option, Doyle took over March's position as optionee.

When March told Jung that he could not pick up the option, she, at March's suggestion, went to see Doyle. At a meeting in July 1974 Doyle offered Jung at least four alternate proposals for either purchasing or reoptioning the property. One of the purchase proposals was for a price of $7250 an acre, with cash down of $50,000 and a note and mortgage at 7 1/2% for the balance payable in ten years. Mrs. Jung testified credibly, in the court's opinion, that she rejected the above proposal and all the others as well. The price was below what March had agreed to pay and what neighbors had received for their land. Mrs. Jung testified as follows:

Q What was the purpose of your going to his office? How did you come to go there?

A Well, I went to see -- I saw Mr. March and he told me he was not going to buy the property; that, I guess, he was broke or something. He said he couldn't buy the property.

So I said, well, I think I will have to get somebody else then; and he referred me then to somebody in the Levitt Building, and it was Mr. Doyle, and I spoke with him then.

Then he did make an offer, but I didn't think it was enough; but being that I was so sick, later on, when I reconsidered that I was there all alone in Barnegat and my son was up in New Orleans -- he is a space engineer up there -- that I thought it would be better just to sell than to be over here and be sick. * * *

That was the first time I saw Mr. Doyle, and I wasn't satisfied with the price because Mr. March had offered me quite a bit more. And my friend over there, she had gotten $10,000 an acre from Mr. March.

But being sick, as I say, I lost two brothers and a sister and my nephew, a 10-year-old boy, within six months, and I was besides ...


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