Morse v. Conley

• Decision Date: 18 November 1912
• Citation: 83 N.J.L. 416,85 A. 196
• Parties: MORSE v. CONLEY.
• Court: New Jersey Supreme Court

85 A. 196

83 N.J.L. 416

MORSE

v. CONLEY.

Supreme Court of New Jersey.

Nov. 18, 1912.

Appeal from District Court of Newark.

Action by Myron W. Morse against Grace G. Conley. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued June term, 1912, before TRENCHARD, PARKER, and MINTURN, JJ.

Jay Ten Eyck, of Newark, for appellant. Gifford & Miller, of Newark, for appellee.

MINTURN, J. On April 14, 1904, the plaintiff, a real estate agent in Newark, and defendant entered into a written contract for the sale of certain real estate, the property of defendant, in that city at the figure of $30,000. On July 13, 1911, in pursuance of the plaintiff's negotiations, the defendant entered into a written contract of sale of the premises with one Victor F. Struck for $20,000, on account of which price Struck paid $500 to defendant; the remainder of the purchase price to be paid on the day of passing title by another cash installment, and the execution and delivery of a bond and mortgage for the balance. The agreement contained in its final paragraph this provision relative to the plaintiff's services, "And Mrs E. V. Conley agrees to pay to Myron W. Morse a commission of two and a half per cent. for services in the matter of the consummation of the sale at the time of the consummation of the same." The proposed purchaser, Struck, was unable, by reason of financial inability, to conclude the sale and consummate the transaction in accordance with his contract, and the defendant still remains the owner of the property. The plaintiff brought this suit to recover his commissions upon the theory that he had performed his part of the contract, and that the defendant had not shown that she had performed her part by attempting to compel Struck to perform his. The trial court gave judgment for defendant. It is clear that the second contract was intended to take the place of the first between these parties as a practical concrete business proposition defining their respective rights in view of the fact that, after an interim of seven years between the execution of the two documents, a new condition had arisen which brought forth a bidder for the property, and the reduction of the consideration of sale from $30,000 to $20,000, and the fixing of the plaintiff's compensation at the old rate, but upon new conditions. The trial court properly viewed the contract as a substitute for the earlier agreement. Crowley v. Myers, 69 N. J. Law, 245, 55 Atl. 305. The question as to the plaintiff's right to maintain a claim for commissions under a contract to...