Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
Defendants, Philip Glick and Kurt Rostan, trading as Glick & Rostan, and Mr. and Mrs. George Temple, appeal from a judgment entered in the Chancery Division by the Hon. Vincent S. Haneman, granting plaintiffs, Vincent J. Finn and Catherine T. Finn, his wife, specific performance of a contract.
In February 1951 Glick & Rostan and plaintiffs signed the contract dating it May 14, 1950. By its terms Glick & Rostan agreed to sell to plaintiffs 2.13 acres of farm land in Elk Township, Gloucester County, for $530, payable in installments at the rate of $10 a month. The monthly payments were to be applied first against interest at 6% and the balance against principal. Plaintiffs also were to pay the taxes. In May 1950 the first $10 had been paid by plaintiffs and they had thereupon entered into possession of the property. Nine months later, namely in February 1951, when they were notified that the contract had been "made up," they paid another $10.
We shall assume, as did the Chancery Division, that in connection with each $10 payment time was made of the essence, although the pertinent terms of the contract, which follow, indicate that the matter was stated rather unprecisely:
"Settlement is to take place at office of Glick & Rostan, Clayton, N.J. when the principal has been paid in full as outlined below, which time is of the essence of this agreement * * *
In the event of the Buyer not making settlement in accordance with the terms hereof the payment or payments made on account shall, at the Seller's option, be forfeited as liquidated damages for the failure of the Buyer to settle; or be applied on account of the purchase price."
Plaintiffs cleared the land of brush and have farmed it from May 14, 1950 to the present time. However, payments of the installments of $10 each were made very irregularly. None was made between August 2, 1951 and January 4, 1952, a period of five months; nor between May 15, 1952 and November 10, 1952, a period of six months; nor between
March 31, 1953 and August 15, 1953, a period of four and a half months. In May 1953 Glick & Rostan were dissolved, and title to the property was conveyed to Mr. Rostan. On July 14, 1953 he wrote plaintiffs threatening them with a forfeiture of all payments and all rights under the contract unless by August 17, 1953, 34 days later, they paid $195, allegedly "the full balance due." The letter has reference, however, not to the "full balance" due on the $530 (which, including interest, amounted at the time to over $400), but to the arrearages in the monthly installments. In other words, no attempt was made to accelerate the payment of the balance due. On August 15, 1953, in response to the letter, plaintiffs paid $120 -- that is, only a part of the arrearages.
Three months later plaintiffs paid $15, and then made no further payments again until August 2, 1954, nine months later. On June 23, 1954 Mr. Rostan wrote another letter, precisely similar in form, threatening forfeiture unless plaintiffs paid the then "full balance" of $175 by July 24, 1954, 31 days later. This again has reference to the arrearages in the monthly installments (to be precise about it, these arrearages seem then to have amounted to $170). On August 2, 1954, in response to the letter, plaintiffs paid only $24.56, and a month later $40. Then there were no payments for six months, namely, until March 11, 1955, when $20 was paid; two months later another $10 was paid. Thereafter and for a period of eight months following May 9, 1955 and until the start of this action, no payments were made.
On November 23, 1955 Mr. Rostan wrote a third letter, precisely similar in form to the two above mentioned, stating that unless the full balance of $229.70 was paid 34 days later, namely, on December 26, 1955, the payments made and all rights under the contract would be forfeited. This letter has reference to the entire unpaid principal (as well as interest), all of which was due. In response to the letter and on or about December 27, 1955 Mrs. Finn wrote a note to Mr. Rostan's bookkeeper offering to start paying
on January 6, 1956 and to keep paying until she made payment in full. However, on or about January 5, 1956 Mr. Rostan and the Temples had come to an agreement under which he agreed to sell the property to them for $700; and on January 17, 1956 he delivered to them a deed for the same. On January 16, 1956 Mrs. Finn left $17 for Mr. Rostan at his office, and on January 24, 1956 Mr. Finn ...