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Fry v. Doyle

Decided: April 19, 1979.

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



On appeal from Superior Court, Law Division, Burlington County, whose opinion is reported in 151 N.J. Super. 115 (1977).

Allcorn, Seidman and Botter. The opinion of the court was delivered by Seidman, J.A.D.

Seidman

Plaintiff, a real estate broker, brought suit for commissions against defendants, respectively the purchaser and seller of a 64-acre tract of land situated in Westhampton Township, Burlington County. Following a nonjury trial, the trial judge issued a written opinion, reported at 151 N.J. Super. 115 (Law Div. 1977), in which he rejected the claim. This appeal was taken from the resultant judgment. For reasons that follow, we reverse.

The following facts, as related by the trial judge, are not in substantial dispute:

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 ($8000 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.

Appended to the option agreement was a "Commission Addendum" signed by Mrs. Jung, in which she undertook to pay to plaintiff "a commission of TEN PERCENT (10) of the gross sales price * * * for the sale of the property" described in the agreement. The commission was to be computed only "on the purchase price as received by Seller from Buyer or any part thereof," and not on the option money.

In July 1974 Mrs. Jung went to see Doyle after March told her he would be unable to exercise the option. Doyle offered her several alternate proposals for either purchasing the property or renewing the option. Mrs. Jung did not agree to any of them at the time; however, in early October 1974, in the words of the trial judge, "the pressure of her own lonely circumstances and ill health finally caused her to agree." 151 N.J. Super. at 121. The trial judge noted that Doyle had not "pushed or hounded her about it." Id.

A contract of sale was entered into on October 10, 1974, incorporating one of the proposals that Doyle had offered in July. The purchase price, based on $7,250 an acre, was $469,075. The contract called for a down-payment of $50,000, with the balance to be secured by a purchase money mortgage in the sum of $419,075, with interest at the rate of 7 1/2% per annum, payable in ten equal annual installments of $59,194, inclusive of principal and interest. The deed and purchase money mortgage were executed and delivered at

the same time. Doyle and Mrs. Jung also signed an agreement to share equally in the costs of defending any litigation and in the payment of any judgment that might be ...


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