For affirmance in part and 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 Weintraub, C.J.
On a prior appeal we ordered final judgment in favor of plaintiffs for the specific performance of a contract for the sale of their property. Sunset Beach Amusement Corp. v. Belk, 31 N.J. 445 (1960). Defendants now appeal from the judgment entered upon the remand with respect to two matters not involved upon the first review: (1) interest on the purchase price and (2) counsel fees. We certified the appeal on our motion.
The judgment before us departs somewhat from the treatment of interest in the original judgment, the trial court believing its revision accords with our findings on the earlier appeal. We agree that it does.
Under the contract dated June 30, 1958, the buyer was given immediate possession. The contract contemplated a final closing 30 days later. The closing in fact occurred on August 15, the date from which the trial court ordered interest to be paid on the full purchase price.
Defendants say interest should run only from November 10, the date upon which certain "paper" streets were vacated. We noted in the earlier opinion that upon the happening of that event plaintiffs were in a position fully to perform the contract. We so observed only to indicate that thereafter there was no impediment to judicial relief (31 N.J., at p. 448). Whether interest should be awarded from that date or an earlier one is another matter to be determined equitably upon all the pertinent facts. East Ridgelawn Cemetery v. Winne, 11 N.J. 459, 471 (1953).
Interest on the purchase price ordinarily is the quid pro quo for possession and enjoyment by the purchaser. The parties bargained for possession without interest for 30 days, and the sellers make no point with respect to the further brief period to August 15. On that day, the purchaser Belk transferred possession to his corporate nominee, and it thereafter
derived the fruits thereof. Although it is true the streets were not vacated until November 10, the fact is that the purchaser failed to procure a survey prior to the final settlement of August 15 and thus it was not until a later date that the impediment was discovered. (31 N.J., at p. 448). Realistically the paper streets presented no problem, and had the difficulty been revealed by timely action of the purchaser, the problem would doubtless have been resolved much earlier. Indeed, if any delay had been expected, the subject of interest would probably have received the parties' attention on August 15 and some suitable arrangement made to the end that $250,000 held by the title company, of which $225,000 was in the form of cashier's checks, would have been productively committed. It was the failure of the buyer to obtain a survey, coupled with the confusion he later created by an unwarranted demand for a reduction in the purchase price that accounted for the delay and loss. In these circumstances, equity required that the sellers be compensated from the date of final settlement.
The buyer complains that the receivership which commenced on February 2, 1959 (31 N.J., at p. 449) resulted in an unprofitable experience thereafter. But "if there be a hardship, it is of defendants' making." (31 N.J., at p. 457). We find nothing in that circumstance warranting a denial of just compensation from August 15.
With respect to counsel fees, some facts should be repeated. The sum of $25,000 had been escrowed with the title company upon the execution of the contract of sale. Subsequently, the balance of the purchase price was escrowed with the title company in the form of two cashier's checks totalling $225,000 so drawn and endorsed that they had to be held in that form. When defendant Varbalow demanded a return of the deposit and checks, the title company ...