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Paul. v. Brass Rail Liquors Inc.

Decided: June 16, 1954.

ROSE PAUL. ET AL., PLAINTIFFS-APPELLANTS,
v.
BRASS RAIL LIQUORS, INC., DEFENDANT-RESPONDENT



Jayne, Stanton and Hall. The opinion of the court was delivered by Stanton, J.s.c. (temporarily assigned).

Stanton

The plaintiffs appeal from an adverse judgment in an action in which they sought the return of the sum of $2,650 deposited by them under a contract wherein they agreed to purchase a retail liquor business from the defendant. The case was presented on a stipulation of facts.

Paragraph 7 of the contract provides as follows:

"In the event that the Municipal Excise Board or other municipal authorities of the City of Camden, for any reason not the fault of the buyer, shall refuse to approve the transfer of said plenary retail consumption license, the deposit made hereunder shall be returned to the buyer and this agreement shall be considered void and of no effect."

Paragraph 14 provides that the contract is conditional and contingent upon certain stated matters, one of which is "that the buyers receive the transfer of the plenary retail consumption license from the Municipal Excise Board of the City of Camden, as hereinabove set forth."

The license issuing authority of the City of Camden denied the application for the approval of the transfer of license. The defendant took the position that the reason for the

denial was the fault of the plaintiffs, refused to refund the deposit and retained it as liquidated damages pursuant to paragraph 6 of the contract.

The decision of this matter essentially is dependent upon the meaning of the word "fault" as used in paragraph 7. To this end we must seek to ascertain the intention of the parties as disclosed by the language of the contract taken as a whole, as well as the situation of the parties, the surrounding circumstances and the objects that they are seeking to attain. "In short, we are to consider what was written in the light of the circumstances under which it was written, and give to the language a rational meaning consistent with the expressed general purpose." Casriel v. King , 2 N.J. 45, 51 (1949). In this connection, we look to the contract to see what it is that the plaintiffs were to receive for the sum of $26,500. We find that they were to have certain fixtures and personal property described in a schedule, and the good will of the business, together with "all the right, title and interest of the licensee in and to the license aforesaid." The entire purchase price was delivered by the buyers to the attorney of the seller in escrow to await just one thing before the consummation of the contract, and that was the approval of the transfer of the liquor license by the public authority. Other than that, the parties had in effect completed their transaction.

As is well understood, a license to vend intoxicating liquor is merely a temporary permit or privilege; it is not a contract; it is not property. R.S. 33:1-26; In re Schneider , 12 N.J. Super. 449 (App. Div. 1951). The issuance, renewal and transfer of liquor licenses rest in the sound discretion of the issuing authority and its action will not be judicially disturbed in the absence of a clear abuse of discretion. Zicherman v. Driscoll , 133 N.J.L. 586 (Sup. Ct. 1946); Biscamp v. Twp. Council of the Twp. of Teaneck , 5 N.J. Super. 172 (App. Div. 1949).

It is evident, therefore, that in a given case there could be an honest difference of opinion whether the discretion

should be exercised for or against the transfer of a liquor license; and the action of the issuing authority would not be disturbed ...


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