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Wellmore Builders Inc. v. Wannier

Decided: April 7, 1958.

WELLMORE BUILDERS, INC., A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
GREGORY H. WANNIER; CAROL G. WANNIER, HIS WIFE; ALEXANDER CAPLAN AND J. LEWIS FIACRE, DEFENDANTS-RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Plaintiff Wellmore Builders, Inc. appeals from a summary judgment entered in the Chancery Division in favor of all defendants and dismissing its action for injunctive relief and specific performance.

On March 9, 1946 the predecessors in title of Wellmore and defendants Wannier entered into an agreement imposing certain obligations upon the parties thereto and their

assignees. Under that agreement plaintiff's predecessor was authorized to construct Woodside Road within the boundaries of the property of the Wanniers' predecessor and to obtain reimbursement for the cost thereof from the proceeds of the latter's sale of nine lots serviced by the road. Thereafter plaintiff and the Wanniers, as successors in title, being desirous of altering the rights and duties imposed by the prior agreement and settling their mutual obligations, entered into a new agreement, dated May 11, 1955, which in summary provided, among other things, that

(1) Plaintiff was to construct Woodside Road through the Wannier property in such a manner that it would be accepted by the municipality as a public street, and also install the necessary storm, water and sanitary sewers.

(2) The parties were to execute an instrument abrogating the agreement of March 9, 1946.

(3) The Wanniers were to convey to plaintiff certain property owned by them on the west side of Woodside Road, together with their right to the conveyance of a 30-foot strip of land adjacent thereto, and obtain a release from an existing mortgage.

(4) The Wanniers were to execute an instrument granting plaintiff the privilege, for a period of five years, of purchasing from them either or both of their two lots on the east side of Woodside Road (designated on a sketch plot as lots A and B, B being the southernmost) if they decided to sell either or both during that period. The purchase price was fixed at $4,000 for each lot. The Wanniers were to give written notice to plaintiff of their intention to sell, plaintiff to have 45 days within which to exercise its option. If plaintiff failed to do so, defendants could sell either or both of the lots without restriction.

In furtherance of the new agreement, Wellmore and the Wanniers executed the following on June 16, 1955: (1) an agreement abrogating the agreement entered by their predecessors in title on March 9, 1946; and (2) a so-called "option agreement" containing the same terms as set out in the agreement of May 11 preceding, with the added provision that the parties would have the right to specific enforcement of the agreement. The option contract makes no mention of consideration or reference to the May 11, 1955 agreement.

Plaintiff thereafter constructed Woodside Road fronting on defendant Wanniers' property and installed the utilities,

in fulfillment of its obligations under its agreement with them. The Wanniers, in turn, conveyed to plaintiff the ...


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