Goldmann, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.
[57 NJSuper Page 280] Plaintiffs, husband and wife, instituted this action in the Camden County Court to recover a deposit of $2,450 which they made under a contract to purchase a house to be built for them by the defendant, The Marlton Corporation. The sale was never consummated, and the
defendant builder eventually sold to a third party the home which had been intended for the Wolfs. The theory of the action is that plaintiffs were at all times ready, willing, and able to comply with the building contract but that the builder unilaterally and unjustifiably terminated the contract without returning the down payment. The County Court judge, sitting without a jury, concluded in a written opinion that it was the defendant who refused to perform under the contract and that consequently a judgment in favor of plaintiffs was dictated. The Marlton Corporation (hereinafter "the builder") appeals.
The agreement of sale, entered into by the parties on March 8, 1957, called for the construction of a dwelling in defendant's housing development in Haddon Township upon the following terms:
"Cash at signing of this agreement (inclusive of any
deposit heretofore paid) $2,450.00
An additional cash payment on or before house
Cash at final settlement 3,100.00
Bond and mortgage in the sum of 25 yr. conv. 5 1/2% 16,500.00
Total Purchase Price $24,500.00
Should Buyer fail to make payment of any additional moneys as herein mentioned, or fail to make settlement as herein provided, the sum or sums paid on account may be retained by Seller either on account of the purchase price or as compensation for the charges and expenses which Seller has sustained, as Seller may elect, in which latter case this contract shall become null and void and all copies hereon shall be returned to the Seller for cancellation."
It is undisputed that the builder had completed the "closing in" of the house sometime in June 1957 and that plaintiffs did not make the second payment. Their failure in this respect is attributed to the conceded fact that they were never personally notified by the builder that the house had been "closed in." After reviewing the testimony, the trial judge stated in his opinion that the case presented a
"simple question" as to whether "the plaintiffs were entitled to a notice that the house was closed in or whether the defendant, without giving such notice, could claim a default * * *." He concluded that the agreement of sale contemplated the giving of such notice. Defendant does not, on appeal, challenge this portion of the opinion below. It does, however, claim that the buyers' attorney was notified of the closing in on at least four occasions during the period from July 1957 to September 1957, and that notice to an attorney handling a transaction for his client is notice to the client.
This contention was not advanced at the trial level, and we find no occasion to explore it as a matter of principle here. The evidence clearly shows that the buyers' attorney told defendant's representatives that his clients would make the second payment if defendant insisted. For reasons presently to be stated, defendant's president, Martin Field, elected not to demand the payment. Under these circumstances, defendant may not now declare a forfeiture on this basis; the doctrine of estoppel is applicable.
The alternative ground briefed on behalf of the builder as basis for a reversal fixes upon a matter of far greater import. The point is captioned: "Buyers breached the agreement of sale by preventing its performance through threats to resell the house to an undesirable purchaser and to ...