Goldmann, Foley and Lewis. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff appeals from a judgment dismissing an order to show cause why defendant should not be compelled to convey certain lands to it pursuant to a judgment previously entered by consent of the parties. Although the rights of the parties were established by that consent judgment, it is necessary to set out at least the more significant details of the five-year history of dealings between them.
In June 1956 defendant realty company agreed to sell plaintiff some 20 acres of land in Wayne Township fronting on State Highway No. 46, for $250,000. This was to be paid as follows: $20,000 deposit, to be paid by plaintiff's assignment to defendant of two mortgages of $25,000 and $5,000, respectively, owned by it; $30,000 cash at the closing, and $200,000 represented by a five-year purchase money bond and mortgage. The excess of $10,000 between the required deposit and the value of the mortgages was to be applied to the first quarterly payment due after the $25,000 mortgage was paid. The closing was set for October 1, 1956, between the hours of 10 A.M. and 4 P.M., at the office of defendant Glasser, the realty company's counsel.
This action was begun in the Superior Court, Law Division, on September 24, 1958. In its complaint seeking damages plaintiff alleged that in searching title it had discovered that a strip of land abutting the highway and running the entire width of the tract did not belong to defendant realty company, but to the State Highway Department; that plaintiff, through its president, Eberhard Meyer, had attempted to negotiate with Glasser for an abatement of the purchase price; and further, that defendant had not
yet obtained the necessary consent to the sale by the Wayne Township Planning Board. The litigation was undoubtedly the result of a breakdown in the negotiations for an abatement, in the course of which the settlement date was, by letter sent to plaintiff by defendants' present attorney, Mr. Sandford, fixed for October 1, 1958 at 2 P.M., at his office, time being made of the essence.
Defendants counterclaimed, demanding specific performance of the agreement. Plaintiff's answer thereto alleged that it had always been ready, able and willing to perform, provided there was a reasonable abatement of the purchase price, and demanded specific performance with such an abatement. The pretrial order of February 27, 1959 summarizes these allegations.
Defendants claim that thereafter, on February 2, 1960, a stipulation of settlement was entered of record containing substantially the same terms as were later stipulated by the parties in open court on October 31, 1960. Although the mentioned pretrial order is stamped "settled," no order or stipulation dismissing the action, or settlement agreement, appears to have been filed and made of record. Plaintiff claims that the settlement agreement failed because it had not consented to its terms. Defendants moved to reopen the case for the purpose of having the settlement agreement enforced. The action was then transferred to the Chancery Division and pretried again in October 1960.
Immediately after this pretrial the parties entered into a settlement agreement which was dictated in open court on October 31, 1960, and entered on the record in the form of a consent judgment dated November 9, 1960. The complaint was dismissed with prejudice and judgment entered in defendants' favor, directing plaintiff to perform specifically the June 1956 contract, subject to certain modifications which included a $2,500 reduction in the purchase price. The only modification involved in this appeal provided:
"1. The closing date is fixed as March 1, 1961, which date is made of the essence."
On February 20, 1961 Mr. Sandford wrote plaintiff, attention of Mr. Meyer, stating he would be ready to deliver the deed at his office on March 1, 1961, at 10 A.M., but "if this hour is not convenient for you, please call me and I shall arrange an hour which will meet with our mutual agreement." On February 28 Mr. Francis Rieger, associated with Mr. Guy Calissi who then represented plaintiff, went to the office of Mr. Sandford to inspect the closing papers he had prepared. According to Mr. Sandford, Rieger arranged for the closing to take place at 10 A.M. the next day, March 1. Later during the afternoon of February 28, he says, Mr. Rieger requested that the closing be postponed until 3 P.M. on March 1, to which he consented.
Mr. Sandford further says that on March 1, 1961 he was present in his office with his client, continuously from 3 until 5:35 P.M., ready to convey title. Mr. Rieger telephoned at about 3 P.M., requesting that the closing be postponed until 5 P.M. Mr. Sandford consented. At 5 P.M. Mr. Rieger telephoned again, advising that Mr. Calissi was on his way to his office from the Court House and requesting Mr. Sandford to await his ...