On appeal from the Bergen County Circuit Court.
For the plaintiffs-respondents Warren Dixon, Jr.
For the defendants-appellants, Hart & Vanderwart.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The defendants appeal from a judgment recovered by the plaintiffs in the Circuit Court of Bergen county. The pertinent facts are as follows:
The parties had agreed, in writing, on October 11th, 1928, the plaintiffs to buy and the defendant Englewood Heights Estates, Incorporated, to sell a parcel of land known as lots 20, 21 and 22 in block 528-A, in Englewood Heights, New Jersey, for the price of $3,600, by installment contract calling for a down payment of $1,290, which was made. It contained a covenant requiring the purchaser to pay $30 on or before the first day of each succeeding month, beginning November 1st, 1928, until the entire purchase price was paid, together with interest at six per cent. per annum, payable quarterly, on the amount remaining unpaid.
The written agreement further provided that time was of the essence of the contract; that the failure of the seller to insist upon strict performance of any of the covenants was not to be construed as a "waiver or relinquishment for the future of any such covenant;" that should there by any default in the payment of any of the installments, and such default continue for sixty days, then on notice, all installments previously paid, might, at the option of the seller, be forfeited and retained by the seller as liquidated damages, or the seller had the right to seek specific performance; further, that when forty per cent. of the total purchase price had been paid a full covenant and warranty deed should be delivered to the purchaser who, in turn, agreed to execute and deliver to the seller a purchase-money mortgage for the unpaid balance. It was agreed by the seller that streets and sidewalks would be laid out in the neighborhood. No time within which these improvements were to be made was mentioned.
The testimony discloses that, prior to this suit, the plaintiffs had made payments amounting to $1,680, as well as additional sums for interest and taxes and the cost of a sewer system; that no deed was given the purchaser, as provided for in the contract of sale, although the amount paid was in excess of forty per cent. of the purchase price, and that in the year 1930, the State of New Jersey, acting through its state highway department, caused notice to be served upon the defendant, record owner of the land in question, that it
proposed to acquire these particular lots and other lands belonging to the defendants, for highway purposes.
The condemnation proceedings that followed resulted in an award of $17,875 for the property acquired, of which these lots were a part. The defendants received the entire award and proceeded to determine arbitrarily just what part of the sum awarded should be allotted to the plaintiffs for the three lots in question. From the testimony, it appears that the defendants took into consideration the amount that remained to be paid on the contract, viz., $2,251.25, and determined that the then value of the three lots, which the plaintiffs had purchased for $3,600, was but $2,490.79 and that the difference between these two, that is, $139.54, represented the plaintiff's compensation for the lots. A check for this sum was mailed to the plaintiffs.
The parties had notice of the proposed condemnation proceedings late in the year 1930. The condemnation was actually started in August, 1931, but the award was not paid until February, 1934. Upon receipt of the check for $139.54 the plaintiffs tendered it back to the defendant, seller, and brought suit for the amount paid by them under the contract, ...