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Cooper v. Kensil

Decided: June 2, 1954.

ARTHUR M. COOPER, STANLEY FRANKEL AND MAPLE SHADE DEVELOPMENT COMPANY, INC., PLAINTIFFS,
v.
THEODORE J. KENSIL, CORONET CONSTRUCTION CO., BERLIN GARDENS, INC., BROKERS MORTGAGE SERVICE AND D.V.M. INVESTMENT COMPANY, DEFENDANTS



Haneman, J.s.c.

Haneman

Plaintiffs herein seek the specific performance of an agreement, under the terms of which they were allegedly afforded an option by the defendant Kensil to participate in future projects for the construction and sale of dwellings. The facts in connection herewith are as follows:

Under date of April 1, 1952 the plaintiffs and the defendant Kensil entered into an agreement which contemplated a housing development by a corporation organized by them and known as Maple Shade Development Co., Inc. This corporation will hereafter be referred to as "Maple Shade" and the said agreement as "Maple Shade contract." The agreement proceeds at considerable length to set forth some of the details of the manner in which the said parties were to proceed, including provisions for the following:

"(1) Price to be paid for stock (2) Loan-amount, type, term, interest, etc. (3) Buy-out of person having an existing interest (4) Status of $1,500.00 judgment note (5) Make-up of Board of Directors (6) Officers (7) Three sub-paragraphs on duties and salaries of officers (8) Signatures on checks (9) Four sub-paragraphs dealing

with non-assignability of stock and stock options (10) Restrictions on salaries until note to plaintiff Frankel is paid off (11) Agreement to transfer tax-title liens (12) The clause at issue in this suit (13) Covenant as to voting stock (14) Receipt of copy of agreement."

Paragraph 12 of said agreement reads as follows:

"12. That all of the parties to this Agreement agree that if any of them shall enter into any subsequent project of constructing and selling dwellings, either alone or with others, he or they shall first offer to the other parties to this Agreement the option of participating in such subsequent project. And each of the parties to this Agreement shall have the right to so participate to the extent of his then existing stockholding interest in the Maple Shade Development Company, Inc."

Subsequent to the Maple Shade contract, and on or about January 1953, the defendant Kensil proceeded to enter into a new housing development project commonly referred to as "Berlin Project," with persons other than the remaining parties to said Maple Shade contract. It does not appear from the testimony whether this project was promoted and sponsored by the said Kensil or whether his participation therein resulted from the overtures of and negotiations by other parties. However, it does appear that the option for the land involved in the Berlin Project was obtained by a third party, to wit, one Ridgway, and not by Kensil.

The primary question with which we are here confronted is the construction of the above quoted paragraph 12.

The plaintiffs urge that in effect all of the four parties to the Maple Shade contract agreed that either (1) where any of them contemplated entering into "any subsequent project of constructing and selling dwellings" by himself, he must first accord the other of said parties the opportunity to participate in any such new "project" in one-quarter shares and obtain their refusals before he had the right to proceed therewith solely, or (2) where any of them contemplated entering into any such "subsequent project" together with strangers to said Maple Shade contract, he must first accord the other of said parties the opportunity to participate in any such new "project" in one-quarter shares in his fractional interest

therein before he had the right to proceed therewith in association ...


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