Goldmann, Foley and Halpern. The opinion of the court was delivered by Goldmann, S.j.a.d.
[65 NJSuper Page 342] Plaintiff brought an action seeking specific performance of a contract for the sale of real
estate based on his acceptance of an option contained in his employment agreement with defendant. He also sought an accounting with respect to his share of defendant's net profits under the employment agreement. The trial court held that plaintiff had not exercised his option within the ten-day period prescribed by the employment agreement, finding that notice of the proposed sale of the premises had been communicated to plaintiff on December 20, 1958 (not on December 22, as plaintiff claimed), and the option had not been exercised until December 31, 1958. Furthermore, the court determined that defendant's net profits for 1958 amounted to $7,460.54, and therefore entered judgment for plaintiff in half this amount, as provided by the agreement. The court made no finding with respect to defendant's contention that plaintiff had either waived or repudiated his rights under the option contract, and was estopped from asserting them.
Plaintiff appeals, contending that the factual finding of the trial judge that notice of the proposed sale of the premises had been communicated to him on December 20 and not December 22, 1958, is not supported by the evidence, and that he had not repudiated the option contract or waived any rights thereunder. Defendant has taken a cross-appeal from so much of the judgment as awarded plaintiff $3,730.27, half of the total net profits, contending that under the employment agreement the firm of auditors therein mentioned found there was no net profit for the purposes of the profit-sharing provision of the agreement.
In March 1958 the parties entered into an employment agreement whereby defendant agreed to employ plaintiff as manager of its Peninsula House, Sea Bright, N.J., a hotel with restaurant, bar and bathing facilities. Among other things, the agreement provided that defendant was free at any time to sell or lease its property. If, during the course
of plaintiff's employment, the property was sold for more than $190,000 plus the aggregate amount of unamortized capital expenditures made by the corporation subsequent to the date of the agreement, plaintiff was to receive an amount equal to half the excess, as and when received by defendant. If, however, the amount offered was less than $190,000, plaintiff was given the option of purchasing the property upon the same terms as those offered, "for a period of ten days after notice to you of such proposed sale * * *."
Defendant received an offer of $135,000 cash for the Peninsula House property. On December 19, 1958 defendant's president communicated this offer to plaintiff by telephone and read to him a letter, dated and mailed that day, notifying him of the offer so that he might exercise the option given him under his employment agreement, and calling his attention to the fact that if he did not agree to accept the same terms as those offered "within ten days after receipt of this notice," defendant would assume that it was free to enter into the proposed contract of sale. As noted, the trial judge found that plaintiff received the letter the next day, December 20. Plaintiff concedes that if this finding is sustained, his acceptance on December 31 was not a proper exercise of his option.
It would appear that the oral communication of the offer was notice enough in itself. The notice contained in the letter of December 19, 1958, giving plaintiff ten days after "receipt of this notice" to accept, was without consideration. However, the parties have chosen to deal with the matter on the basis of the letter alone, defendant contending that the trial judge's finding was entirely correct, and plaintiff claiming that the proofs do not sustain it.
The issue on the specific performance aspect of the action was entirely factual, and involved exclusively a determination of the credibility of the parties and their witnesses. On a review of any civil cause involving issues of fact not determined by the verdict of a jury, as here, we are authorized to make new or amended findings of fact. However,
due regard must be given to the opportunity of the trial court to judge of the credibility of the witnesses. R.R. 1:5-4(b); Capone v. Norton , 11 N.J. Super. 189, 193 (App. Div. 1951), affirmed 8 N.J. 54 (1951); Abeles v. Adams Engineering Co., Inc. , 64 N.J. Super. 167, 183 (App. Div. 1960).
Our study of the record convinces us that there is no reason to disturb the finding below. It is clear that the trial judge was more impressed with the testimony of defendant's president than that of plaintiff and his secretary. There is substantial evidence to support his conclusion that the option was not timely exercised. ...