On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Burling, Jacobs and Weintraub. For reversal -- None. The opinion of the court was delivered by Weintraub, J.
Plaintiff, Frank Stamato, prevailed in a suit for specific performance of a contract for the sale of land owned by defendant, Fred Agamie. The Appellate Division reversed and we granted certification. 23 N.J. 115 (1956).
On August 14, 1953, the parties executed the following memorandum:
"This agreement between Frank Stamato and Fred Agamie of 18 South Jefferson St., Orange, N.J. Frank Stamato of 1 Pearl Brook Drive, Clifton, N.J., agree to buy Tract of Land located on the West side of River View Drive consisting of app. 12 acres including 1 family 6 room House and South of Totowa-Wayne Airport Also Tract of Land consisting of App. 8 acres East of River View Drive and South of Totowa-Wayne Airport subject to Frank Stamato acquiring app. 2 acres of land running North-South through the 12 acres on the Westerly side of River View Dr. also subject to change of Zone from Residence to Light Industry. The Purchase Price will be ($22,500.) Twenty Two thousand Five Hundred Dollars. Deposit will be ($500.) Five Hundred Dollars. Upon signing of Contract ($2,000.) Two thousand Dollars. Balance at Closing within 90 days to 180 days.
The deposit of $500 was paid at the time of the execution of the memorandum.
It will be noted that the parties contemplated a further payment of $2,000 to be made "Upon signing of Contract" and that plaintiff's obligation to perform was contingent upon (a) his acquisition of a two-acre tract owned by a third party and (b) the rezoning of the lands here involved from residential to light industrial.
The memorandum was prepared without the aid of counsel. Plaintiff immediately engaged an attorney, Albert H. Kreamer. Kreamer promptly prepared a formal contract which he sent to plaintiff for execution, but plaintiff did not sign it and did not post the required sum of $2,000. Kreamer's effort to obtain a change of the zoning ordinance
failed when the planning board reported adversely on October 5, 1953, and although he prepared an ordinance in December 1953, it was never presented. We are told that plaintiff took some steps toward acquiring the two-acre parcel, ...