Price, Sullivan and Lewis. The opinion of the court was delivered by Sullivan, J.A.D.
Defendants appeal from a judgment in favor of plaintiff for $7,700 plus interest and costs based upon a ruling that plaintiff had earned a real estate broker's commission for which defendants were liable.
On July 3, 1958 plaintiff and defendants entered into a written agreement whereby plaintiff, a real estate broker, was granted the exclusive right to sell certain premises owned by defendants in Somerset County. For his services defendants agreed to pay plaintiff a commission of 10%. The agreement provided that the price for which the property was to be sold was $1,000 an acre "or any other price acceptable" to defendants. The property was described as "Property of Mr. and Mrs. John Enz, Morning Glory Rd., Warren Township. Property of 100 acres more or less, located in Greenbrook Township."
During the term of the listing agreement, as extended, plaintiff interested a Mr. Raymond M. Barrett in the property and, after some negotiations, a form of written agreement dated January 8, 1959 was executed by Barrett as purchaser and defendants as sellers. Said agreement provided that the actual acreage was to be determined by a survey made at the expense of the purchaser, and the purchase price was set at $700 per acre. The agreement also provided "that the seller will further retain approximately 5 acres of land including his own home with the 5 acres to be created to the mutual satisfaction of buyer and seller and the description to be prepared by C. H. Firstbrook * * *." Closing date was designated to be "on or before April 20, 1959."
Said agreement also contained a clause that the seller "hereby agrees to pay to E. J. Van Wagner a commission of 10% on the purchase price aforesaid. Delivery of the deed and payment of the full purchase price in accordance with the terms of this agreement are declared conditions precedent to the obligation of the Seller to pay said commission."
For the sequence of events thereafter we cite the following excerpt from our unreported opinion (A-548-60) in a suit brought by the Enzes to expunge from the record the contract of sale and to have the same declared to be in default, wherein Barrett counterclaimed for specific performance of said contract.
"No closing took place on April 20, 1959, and there were no formal extensions of time. On October 12, 1959 the attorney for the plaintiffs wrote to the attorneys for the defendant giving notice that the contract was terminated because of the defendant's failure to take title. There had been no prior effort to fix a firm date for closing and make time of the essence. Effectiveness of the termination letter was challenged by a reply written the next day. After that, although with considerable slowness, the defendant went on to act as though the contract was still in force. On November 10, 1959 he recorded it. By a letter dated February 26, 1960 he named March 11, 1960 as the date for closing title and declared time to be of the essence. Descriptions to be used in the deed were sent to the plaintiffs with that letter, but the five-acre tract to be retained by them was not provided for in any way.
The plaintiffs did not appear at the appointed place on March 11, 1960 and on March 22nd they filed their complaint in the Chancery Division demanding in effect that the county records be cleared of the contract of sale, that the contract be declared to be in default and that the initial payment ($3,000) made on account of the contract price be fixed as liquidated damages.
The defendant then filed his answer and a counterclaim for specific performance with a demand in the alternative for money damages. When the case was reached for trial it was announced for the plaintiffs that no affirmative relief would be sought because a decision on the counterclaim would of necessity dissipate the cloud on the title created by the recorded contract, that the down payment of $3,000 would be refunded, and that the plaintiffs would defend the counterclaim. The hearing then proceeded as though the defendant had been the original plaintiff. The result was a judgment dated March 10, 1961 which recited the making of the plaintiffs' commitment to refund $3,000, denied specific performance to the defendant and dismissed his counterclaim. From that judgment the defendant has taken this appeal.
The trial judge found as a fact that the five acres to be retained by the plaintiffs from the lands described in the contract of January 8, 1959 had never been defined and held that in the absence of such definition there was nothing before the court which could be performed specifically. We agree with the trial judge's reasoning and with his conclusion. No deed in full conformity with the contract could have
been drafted until the five-acre tract was 'created to the mutual satisfaction of buyer and seller and the description' prepared by Mr. Firstbrook; and the same comment can be made about a judgment for specific performance which by statute is to have the effect of a deed. N.J.S. 2A:16-7. Definite identification of the land which a vendor has agreed to sell is vital in a suit for specific performance. Alnor Construction Co. v. Herchet , 10 N.J. 246 (1952). In the present case a description of the five acres was necessary to establish what ...