Eastwood, Jayne and Clapp. The opinion of the court was delivered by Jayne, J.A.D.
[30 NJSuper Page 205] A panoramic exposure of the factual background of this litigation is contained in a previous decision of the Appellate Division reported in 22 N.J. Super. 439 (App. Div. 1952). To reproduce or redesign it here is inexpedient.
It is, however, informational to relate that in conformity with the mandate of the former appeal a further hearing was had in the Chancery Division at which testimony was introduced relative to the value of the list of insurance policy expirations to the end that an accurate determination of the book value of the shares of the capital stock of Fiedler and Hollister, Inc., should be made. Additionally, to correct an inadvertent omission discovered in the consideration of the prior appeal, the ownership of the one share of stock evidenced by certificate No. 7 was by supplemental pleadings brought in issue.
A final judgment eventuated by which the defendant was directed specifically to perform the terms of the option agreement of May 1, 1948, the plaintiff was adjudged to be the owner of the designated one share of stock, and the cross-claim and counterclaim of the defendant were dismissed. Such is the judgment now before us for appellate review.
Collectively, the principal questions projected for decision by the present appeal may be merged into two. Did the trial judge manifestly err in resolving that the ten shares of the deceased stockholder subject to the option agreement had no book value? Did he also err in adjudging the plaintiff to be the owner of the one share represented by stock certificate No. 7?
In approaching the consideration of those questions, let us divulge that we appropriately accept the prior decision of the Appellate Division as a declaration of the law of the case. Then we must be mindful that the plaintiff's cause of action is one for specific performance. Next we must be observant of the pertinent terms of the option agreement, such as (a) which obligates the survivor to "give written notice of the exercise of this option within sixty (60) days of such death to the personal representative of the deceased party * * *," and (b) which further requires the survivor who exercises the option within 30 days thereafter to tender to the legal representative of the deceased party "the book value of the shares of stock of the Company * * *."
We may then recognize the respective concessions. It is
acknowledged by the defendant that the plaintiff gave timely notice of his exercise of the option. It is admitted by the plaintiff that he did not make any monetary tender in payment of the stock of the deceased because in his opinion it had no book value at the time of the death of the decedent.
It is not inappropriate to appreciate that in the circumstances of the present case we need not be concerned with whether equity itself exacts the duty of making a tender. Here the necessity of the tender is the express stipulation of the contracting parties. Moreover, in the complaint the plaintiff alleges that he "has complied with the terms of the contract respecting the giving of written notice and the tender of the book value." Those allegations are controverted by the averments of the defendant's answer.
Noticeably the plaintiff did not allege his ability, readiness and willingness to pay such sum as the court should determine to be the book value of the stock. It is the general rule that he who seeks specific performance of a contract must show himself ready, desirous, prompt and able to perform the contract on his part. Meidling v. Trefz , 48 N.J. Eq. 638 (E. & A. 1891); Korb v. Spray Beach Hotel Co. , 24 N.J. Super. 151 (App. Div. 1952). The plaintiff neither tendered nor expressed a willingness to pay anything. Hence his equitable right to the specific performance of the agreement by the defendant depended basically upon proof that the stock had no monetary value within the import of the construction ascribed to the option agreement by the prior decision.
Where jurisdiction exists, the equitable remedy of specific performance is not one of positive right. Cline v. Kurzweil , 141 N.J. Eq. 508 (Ch. 1948), affirmed 1 N.J. 407 (1949). The equities may be made obscure by the special exigencies and facts of the particular case. Where the amount of the purchase price is to be determined by a designated standard or method and it is thereby reasonably ascertainable, and the plaintiff alleges his ability and readiness to ...