On appeal from the Union County Court, Law Division.
For affirmance and reversal -- Justices Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.
[24 NJ Page 538] This is an appeal by the plaintiff from a judgment below dismissing its action brought for the possession of certain premises and from a jury verdict awarding the defendants $10,000 on their counterclaim.
In the fall of 1954 the parties signed a contract for sale by the plaintiff of premises in Summit, New Jersey, to the defendants for a total purchase price of $38,000, $1,500 down and the balance payable in $300 monthly installments; title to be transferred when the purchase price was reduced to $30,000. The contract contemplated the completion of the house by the plaintiff in accordance with four pages of specifications attached thereto. There was a supplemental agreement made between the same parties in December 1954, modifying and amending some of the terms of the original contract. The defendants have been in possession since January 1955.
Claiming non-payment of the December 1955 purchase price installment and other defaults by the buyers, the plaintiff instituted this action for possession of the premises. The defendants denied the allegations of default and counterclaimed for $12,000 damages, allegedly resulting from the plaintiff's incomplete or defective and unsatisfactory performance of its agreement to build the dwelling in question.
On the close of the plaintiff's case, the trial court dismissed its action for possession on the ground that the requisite notice by registered mail, specified by the supplemental contract, had not been given.
The defendants on their counterclaim submitted proof concerning the many ways in which the plaintiff had allegedly failed to comply with its contract to construct a dwelling in good and workmanlike manner and to supply it with certain items hereinafter mentioned. Damages were claimed as the necessary reasonable cost of replacing or repairing the defective work performed by the plaintiff and completing the unfinished work. The bulk of the defendants' damages was summarized in a written estimate prepared by an expert and admitted into evidence.
Additionally, the defendants claimed the sum of approximately $4,000 to compensate them for a "missing" airconditioning system and other items the plaintiff allegedly was obliged to furnish. The plaintiff's appeal is from both judgments.
The plaintiff is a wholly-owned family corporation, H. Jardine Samurine owning 2% of the outstanding shares of stock and his wife owning 98% of the shares. Samurine actively and solely managed the affairs of the corporation.
Prior to the time the case was actually reached for trial, an excessive number of adjournments had been granted to the plaintiff to enable it to get an attorney to represent it. Two attorneys had already appeared of record and were relieved or sought to be relieved of their responsibility, and it was upon the representations of Mr. Samurine that a third attorney would appear to try the case that several successive adjournments had been granted by the assignment judge. When the matter was again scheduled for trial, no attorney appeared for the plaintiff. The court below was faced with the alternative of dismissing the action and suppressing the defense to the counterclaim, or permitting Samurine, pursuant to his repeated requests, to try the case himself. The assignment judge acceded to Mr. Samurine's plea, and this added to the burdens of the trial judge in controlling the proceedings with fairness to both sides.
The plaintiff's action for possession was dismissed at the close of its evidence because of a failure to prove the notice of default had been given by registered mail as specified in the contract. The plaintiff insists that notice by ordinary letter personally delivered or oral notice constituted a sufficient compliance by the plaintiff with the requirements of the amended contract, but does not deny that the specific notice called for in the document was not given.
The court's action was justified by the record. The judgment below dismissing the plaintiff's cause of ...