[35 NJSuper Page 272] Plaintiff seeks rescission of an agreement dated December 16, 1953 for the purchase of certain premises in Mt. Holly, New Jersey, known as the Imperial Hotel, together with the plenary retail consumption liquor license for said premises, for $50,000. In the alternative, he seeks damages for loss of the bargain because of misrepresentation concerning the amount of business being done weekly at or over the bars in the premises. Defendants deny any misrepresentation and claim they are entitled to the $5,000 down payment made at the time the agreement was executed by way of liquidated damages and, in the alternative, specific
performance of the agreement. By their counterclaim they demand damages because of a drop in the market value of the premises during the period between the agreement and February 16, 1954, when settlement was to take place. They also seek damages because plaintiff charged them with fraud.
Plaintiff claims that he was induced to enter into the agreement by reason of representations in an advertisement inserted by defendant James J. Bozzo in certain publications circulating among the New Jersey and Pennsylvania liquor trade, offering to sell the Mt. Holly premises for $75,000, $25,000 to be in cash and $50,000 by way of mortgage. Among other things, this advertisement stated that there was an "$1100 weekly bar business." Plaintiff testified that he owned and operated a small place in Philadelphia where he had a malt beverage license issued by the Pennsylvania Liquor Control Board. He had been connected with the liquor business for some 18 years. He stated that after seeing Bozzo's advertisement he visited the Mt. Holly premises near the close of November; the date so testified to appears to have been Wednesday, November 25, 1953. He spoke with Bozzo, but there was no serious discussion about buying the business. He visited the premises again on Wednesday, December 2, 1953 when he alleges he told Bozzo that the $1,100 figure was of interest to him. He admits that he saw a brown notebook -- it was introduced in evidence and contained a record of daily bar receipts week by week, a page being devoted to each week, for the weeks ending June 15, 1953 to December 28, 1953 -- but claims he was given no more than a casual look at it. He asserts that Bozzo held on to the book and showed him only two pages where the weekly receipts totalled about $800, Bozzo offering the explanation that business had dropped off in these weeks because his son was in charge of the bar. Plaintiff does not allege that defendant withheld the book from him, but insists he did not take it into his hands.
Plaintiff further testified that he visited the hotel a third time on Wednesday, December 9. He says that he became a little "leery" of buying the place and told Bozzo he would
rather wait until after Christmas and check a bit. He was "leery" because he found the record book "too informal"; it was written in pencil and was "smeary," so that he wanted to look into the matter a little further. The next event was his receipt of a letter from Bozzo (plaintiff claims he can no longer find it) wherein he wrote he was very anxious to sell because of family trouble and business falling off. The letter mentioned a $50,000 sale price for the first time; on previous visits $60,000 had been discussed. The result was that plaintiff went to Mt. Holly on December 16 and executed the agreement in question, paying $5,000 down, the balance of the $50,000 purchase price to be paid at settlement as follows: $25,000 purchase money mortgage, plaintiff's $50,000 note payable in certain installments, and $15,000 cash. Plaintiff said he purchased because the price had dropped $10,000.
The agreement fixed February 16, 1954 as the date of settlement at the office of defendants' attorney, time being made of the essence. Paragraph 13, as amended by the pretrial order, provided:
"Buyer agrees to apply within 10 days for transfer of Malt Beverage license to wife in Pa. If such transfer is not approved without fault of applicant and buyer is disqualified from N.J. Liquor License then this contract is void and deposit made hereunder to be returned. Buyer further agrees to apply for New Jersey Liquor License transfer within ten days after approval of hereinbefore mentioned Pennsylvania Malt License transfer."
On December 23, 1950, a week after the execution of the agreement, plaintiff says he went to Mt. Holly and told defendants his wife would not take the transfer of the Pennsylvania license and he asked that his $5,000 be refunded. Bozzo refused to do so. According to plaintiff he had had a representative of a surety company come to his Philadelphia place of business during the intervening week to arrange for the transfer application and the bond that had to accompany it. His wife had refused to sign, so that he was unable to apply for the transfer. He claims that he had asked her to reconsider her decision more than once because he stood to lose
his $5,000 deposit, and that her reply was that he "should have thought of it before this."
Plaintiff did not testify that Bozzo had at any time during their discussions expressly represented that the hotel was doing an $1,100 bar business. He claims that he relied upon the advertisement.
Defendant Bozzo's testimony contradicted plaintiff's in many significant respects. In the first place he says plaintiff first came to see him in Mt. Holly on November 4, 1953, and not three weeks later. This and the other visits about to be mentioned were corroborated. At that time plaintiff offered $45,000 and Bozzo demanded $65,000. Price was again discussed on plaintiff's visit to Mt. Holly on November 11. A similar discussion took place on a visit on November 18; on this occasion plaintiff asked to see the books of the business. Bozzo says he took plaintiff up to his apartment in the hotel and gave him the brown record book already referred to; that plaintiff looked through it page by page for about ten minutes and said "That looks good enough for me"; and that they then went downstairs where he showed plaintiff another book (this one with a blue cover, admitted in evidence), which listed daily and weekly receipts for the weeks ending March 16 to June 8, 1953. Further discussions were held at Mt. Holly on November 25 and December 2, 1953. When plaintiff visited on December 9, Bozzo asked that he make a deposit or drop the proposition. Plaintiff's reply was that he would buy after the holidays for $60,000, but could give only $20,000 in cash.
Defendant testified that he then wrote to plaintiff in Philadelphia stating he would sell for $50,000 and would like to hear from him by Tuesday. That date would be December 15. Plaintiff phoned and said he would come to Mt. Holly on Wednesday with the money. He did, bringing with him $20,000 in cash which he deposited in two banks. He then went to the office of defendants' attorney, and when the latter suggested he get his own attorney his reply was that he saw ...