On appeal from Superior Court, Chancery Division.
For reversal in part -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the court was delivered by Burling, J.
[32 NJ Page 465] The Looman Realty Corp. (hereinafter referred to as Looman) filed suit in the Superior Court, Chancery Division, to compel the Broad Street National Bank of Trenton, a national banking corporation, to specifically
perform an alleged contract of sale of premises, owned by the Bank, located on the southwesterly corner of East State and Montgomery Streets and commonly known as the Broad Street National Bank Building. The suit also sought to restrain the Bank from disposing of or encumbering the premises in question, and sought damages for the breach of the alleged contract of sale. After the defendant Bank filed its answer, both parties submitted motions for summary judgment in their behalf together with affidavits in support thereof. The trial court granted defendant's motion for summary judgment and denied plaintiff's on the grounds that the contract of sale did not satisfy the Statute of Frauds. Thereafter a motion was made to include Louis Graff and Emanuel Lerman as plaintiffs in the above suit and to amend the order granting defendant's motion for summary judgment to make it applicable to the proposed individual plaintiffs. This motion was denied by an order dated June 22, 1959. The following day Looman filed a Notice of Appeal with the Superior Court, Appellate Division, from the trial court's order granting defendant's motion for summary judgment and denying Looman's motion. Graff and Lerman then filed a complaint in the Superior Court, Chancery Division, seeking the same relief requested by Looman in its suit, from the same defendant, and on the basis of the same contract, except that the performance was to be made to Graff and Lerman. Defendant immediately filed a motion for summary judgment which was granted. Graff and Lerman appealed from this determination, which appeal was consolidated with the Looman appeal by order of the Superior Court, Appellate Division. While the cause was pending there, however, and prior to argument, we certified it on our own motion.
It appears from the affidavits that Louis Graff, Emanuel Lerman, and Emily Lerman, Emanuel's wife, are the sole officers, directors, and stockholders of the Looman Realty Corp., filling the offices of President, Secretary-Treasurer, and Vice-President respectively. Graff was contacted by [32 NJ Page 467] Charles N. Schragger, a director of the defendant Bank and a member of its building committee who apparently is also a real estate broker and the president of a firm dealing in real estate transactions, concerning the possible purchase of the premises in question by Graff. Graff manifested interest therein and a meeting between Schragger, Graff, and apparently Lerman was arranged and held, at which different asking prices, counter-offers and respective terms were discussed. As a result of this meeting, another meeting was arranged and attended by Graff and Lerman, and by Schragger, Scott M. Fell, President of the Bank, Charles J. Weiser, Vice-President of the Bank, Raymond L. Steen, Cashier, and Samuel L. Conard, an officer and director of the Bank. Many details of the proposed transaction were discussed at this meeting, but apparently no definite conclusions were reached at this time. Shortly thereafter, Graff and apparently Lerman met again with Schragger. At this time Graff gave Schragger his personal check for $10,000 drawn to the order of the Bank as a deposit to be applied against the purchase price which check apparently was submitted to and retained by the Bank. Five days later, Graff, Lerman, and Schragger again met, and at this time a letter was prepared by Schragger transmitting to the Bank the terms of the alleged offer. This letter, dated January 14, 1959, was directed to Fell as President of the Bank. It was signed: "Chas. N. Schragger, Inc. Chas. N. Schragger President." It was also signed: "Approved: Louis Graff Emanuel Lerman." The letter included the statement: "The offer of purchase is from a company owned by Mr. Louis Graff and Mr. Emanuel Lerman * * *." Graff claims in his affidavit submitted in connection with the Looman motion for summary judgment that he was informed by Schragger on January 20, 1959, that the alleged offer had been accepted by the Bank's Board of Directors and arrangements were made for the preparation of a formal contract of sale to embody the terms of the agreement. Fell's affidavit has attached to it a copy of the resolution adopted by the
Bank's Board of Directors approving the terms of the letter in question. On February 3, 1959, however, Schragger's brother, acting for Schragger in the latter's absence, communicated with Lerman and told him that the Bank had decided not to complete the agreement previously decided upon and that the transaction was terminated. It appears from Graff's affidavit that the Bank had found another purchaser with whom, for reasons which do not appear in the record, they preferred to deal. The Looman complaint was filed shortly thereafter.
This complaint is in three counts. The first count alleges that the letter of January 14 was "an offer in writing * * * submitted by Louis Graff and Emanuel Lerman on behalf of the plaintiff," alleges the Bank's resolution of acceptance and acceptance of Graff's check, and the refusal to complete the transaction and the return of the check. The second count repeats the allegations of the first count and alleges that the Bank informed plaintiff that it will convey the premises to a third party, and seeks a restraint preventing the Bank from doing this or in any manner conveying or encumbering the premises. The third count repeats the allegations of the first and second count and seeks $1,000,000 damages from defendant if specific performance is rejected. The complaint filed by Graff and Lerman individually is virtually identical to the Looman complaint except that it states that the letter of January 14, 1959 was "an offer in writing * * * made by Louis Graff and Emanuel Lerman * * *."
Defendant's answer to the Looman complaint admits receipt of the January 14 letter, the retention of the check and the resolution "addressed to the proposal of January 14," but denies that the January 14 letter was an offer, denies the existence of a contract, and claims a lack of information sufficient to form a belief as to the other allegations of the complaint. As separate defenses to the first count, defendant Bank states the following: (1) that the January 14 letter was not an offer; (2) that the Bank's resolution was not
an acceptance; (3) that there is no memorandum in writing, signed by the party to be charged therewith, sufficient to comply with the Statute of Frauds, R.S. 25:1-5(d); (4) that retention of Graff's check is not such part performance as to remove the transaction from the operation of the Statute; (5) assuming, arguendo, an offer and acceptance, the latter was never communicated to the offeror; (6) that there has been no sufficient "meeting of the minds" to allow of the creation of contractual relations; (7) that the parties, if such they were, contemplated further agreement by way of a subsequent instrument to embody essential terms; (8) that specific performance should not be allowed because the bargain has not been completed and its terms are not sufficiently definite. Besides all of the above, defendant adds as another separate defense to the second count of the Looman complaint that the restraint would be improper because plaintiff is not entitled to primary equitable relief. As separate defenses to the third count, defendant includes by reference the first seven separate defenses to the first count. The defendant Bank filed no answer to the Graff and Lerman complaint but moved immediately for summary judgment.
The trial court, in connection with the Looman suit, granted defendant's motion for summary judgment and denied plaintiff's on the ground that the offer of January 14, 1959 was insufficient to satisfy the Statute of Frauds, R.S. 25:1-5(d), more particularly in that the "memorandum on its face discloses that a party signing it is signing in a representative capacity as agent but fails to disclose the identity of his principal for whom he is acting," citing Follender v. Schwartz, 107 N.J. Eq. 451 (E. & A. 1930). The trial court granted defendant's motion for summary judgment in the Graff and Lerman suit on the ground that the prior litigation constituted an estoppel in that the parties are taking a position inconsistent with that which was taken in the Looman suit.