Civil action. On stipulation of facts.
[2 NJSuper Page 323] The remedy sought to be achieved by the plaintiff in this action is a final judgment requiring the defendants or those of them having reversionary estates therein to convey to him certain lands and premises designated as No.
1984 Greenwood Avenue, in the Township of Hamilton, Mercer County. The basic contractual engagement upon which the alleged cause of action depends is evidenced, it is said, by a lease executed on February 28, 1946, by Frederick H. Arend, Sr., and Laurina A. Arend, his wife, as lessors, and by the plaintiff and one Leo R. Newmark, as lessees.
A variety of defenses has been interposed, the pertinency and consideration of which necessitate the following background of information. During the period of 1923 and 1925 inclusive Frederick H. Arend, Sr., acquired by purchase three contiguous parcels of land in Hamilton Township which he associated in the pursuit of the business of operating a gasoline station and the maintenance and repair of automotive vehicles until the year 1942, at which time he retired. In 1945 he vested the title of the premises in himself and his wife, Laurina A. Arend, as tenants by the entirety.
On February 28, 1946, he and his wife agreed in writing to let unto the plaintiff and Leo R. Newmark:
"ALL THAT CERTAIN LAND AND PREMISES KNOWN AS 1984 GREENWOOD AVENUE, IN THE TOWNSHIP OF HAMILTON, COUNTY OF MERCER AND STATE OF NEW JERSEY, together with the full amount of the land the use, occupancy and for the privilege of sub-letting the garages in the rear except one garage to be the exclusive use of the owner or his family or anyone else that he may choose to occupy same, and the lower grade floor of the Main building all for the purposes of continuing service station for automobiles, sale of ass essories, gas and oil or any other articles chosen by the tenants to further the business desired by the tenants. It should not be construed and neither is it intended that the second floor apartment shall be included in this lease. It is not intended that the use of the basement is to be included in this lease. It is intended however that the tenants has (sic) the right to the use of all gas and oil tanks if any under the surface of the ground and the use of the pumps for gasoline and oil if any, now in storage of the landlord."
The lease also embraces terms which should be quoted literatim:
"The term of this lease is to be for three years commencing, the first day of May 1946 and ending the 30th day of April 1949, at five o'clock in the afternoon of that day at the yearly rental of Thirteen hundred twenty dollars ($1320.00), payable one hundred ten dollars ($110.00) monthly in advance and due on the first day of each month.
"Be it hereby known and acknowledged by all parties concerned that the eleven hundred dollars ($1,100.00) which has already been paid at the time of the drawing of this lease, by the tenant to the landlord, who does hereby acknowledge that he has received this eleven hundred dollars ($1,100.00) for the following purposes (first) it is to be used for the payment of the last ten months of rent of the three year period of this lease, it shall in no way be construed to be used for any portion of the first twenty-six (26) months rent within the terms of this lease. (secondly) if at any time during the three year period and providing the rent is paid within the meaning of this lease the tenant and either of them decides to purchase the said premises then this eleven hundred dollars ($1,100.00) may be used and considered as an initial and down payment on the purchase price thereof providing satisfactory terms for the payment of the balance of the purchase price can be arranged. The sale price agreed upon between all parties concerned is to be fourteen thousand three hundred dollars ($14,300.00) which is to include all real estate with the present description of these premises together with the tanks herein mentioned and the pumps herein mentioned."
On May 8, 1946, the lessor, Frederick H. Arend, Sr., died and in the following year Laurina A. Arend, the surviving tenant by the entirety conveyed the demised premises to her son, Frederick H. Arend, Jr., and to her daughter Lillian A. Drake. It is acknowledged that from the inception of the lease Frederick H. Arend, Jr., has acted as the agent of the lessors and owners in the collection and receipt of the rent.
On June 29, 1946, the lessee Leo R. Newmark by an instrument executed and acknowledged in writing assigned all of his "rights" in the demised premises ...