Gaulkin, Kilkenny and Herbert. The opinion of the court was delivered by Herbert, J.s.c. (temporarily assigned).
A contract to buy and sell real estate is the basis of this case. It is dated May 16, 1960, describes two tracts of land in Woodcliff Lake, Bergen County, and names the plaintiff as purchaser and the defendant as seller. Title was closed on the lands designated as the second tract in the contract, and we are now concerned only with the first tract.
When title to the first tract was not closed on time the plaintiff sued in the Law Division for a refund of $12,500 which he had paid on account of the specified purchase price of $112,000. The answer of the defendant denied that he was obligated to pay any refund and alleged that he had been prepared to deliver a deed and accept the balance of
the price at the time and place which the plaintiff had fixed for closing title. There followed an allegation that the plaintiff, at the appointed time and place, had neglected and refused to carry out the contract. The defendant also counterclaimed for specific performance or, in the alternative, damages; but this counterclaim, we are told by counsel, was dismissed voluntarily without prejudice.
After the counterclaim had been dismissed, there was a motion for summary judgment by the defendant. It was supported by affidavits and the contract between the parties, as well as by a certified copy of a resolution of the Planning Board of Woodcliff Lake, adopted October 24, 1960. Having heard the defendant's motion, the judge of the Law Division suggested that the case might be treated as though both parties had sought summary judgment. Counsel having so stipulated, the matter was given further consideration and a judgment was entered against the defendant for $12,500.
The basis for the judgment was a conclusion by the judge of the Law Division that the defendant was obligated to procure, before the closing of title, preliminary approval of the Planning Board of the Borough of Woodcliff Lake for a proposed subdivision of the property into building lots and had failed to meet that obligation. On appeal the defendant now contends that the Law Division erred, both in determining that there was an obligation to get planning board approval and that such approval had not in fact been obtained.
Before consideration of the obligation to procure approval from the planning board it should be noted that this is not a case in which the seller was to convey part of an existing unit of land to the buyer and therefore needed official sanction for a subdivision to be created by the intended conveyance. It was conceded at the oral argument that the first tract as held by the defendant was a unit already subdivided from any larger tract of which it had ever been a part. What we are concerned with here is planning board
approval as a basis for carrying out a plan to cut up the first tract into building lots after transfer of the title.
As to the existence of an obligation to get planning board approval, the wording of the contract, standing alone, would leave some doubts. The contract contains no clearcut definition of the approval to be obtained and no direct statement that the seller (the defendant) had to obtain it before the plaintiff would be required to close title. There is language in the document, however, from which an obligation may be inferred. Then, in addition, we have the fact that the parties treated the contract as though requiring planning board approval as a prerequisite to the closing of title.
Inferences that the defendant had to obtain, at or before the closing, a valid approval from the planning board may be drawn from these provisions:
(a) Near the beginning of the document it is provided that the seller will convey "free from all encumbrance * * * on or about September 1, 1960 and within 30 days after preliminary subdivision approval * * *";
(b) Another provision makes the seller responsible for "all engineering costs and fees" but with fees and costs pertaining to a performance bond to be paid by the purchaser;
(c) Finally, there is a sentence reading, "There is no representation that there are 25 building plots in First Tract but both parties shall cooperate in securing 25 plots and Seller represents that he has already presented a map to the Planning Board setting forth 25 plots in First Tract."
By the language quoted above in subparagraph (a) the parties established subdivision approval as one of the factors controlling the closing date. What they intended by the phrase "preliminary subdivision approval" can be clarified by referring to N.J.S.A. ...