This action was instituted for specific performance of an agreement to sell real estate, to set aside a subsequent conveyance of the real property and, in the alternative, for damages for breach of the contract.
Defendants Zuck, having listed their property with a broker, signed an offer to purchase dated February 8, 1965, agreeing to sell the property owned by them known as Block 32, Lot 23 (the correct lot number was 22), in Jackson Township, to plaintiff for $29,750. The offer was obtained by the Zucks' broker. The lot did not front on any state, county or municipal road. It was vacant land through which the Toms River flowed, 70% under water, in some places as deep as five feet. The offer to purchase provided: "Access from main road to property guaranteed."
Subsequently, plaintiff's attorney, at the request of Mr. Zuck, drew an agreement of sale which was signed by the parties and dated March 13, 1965. This agreement provided for the closing on April 20, 1965, and further stated that "Sellers guarantee ingress and egress from the main road to the premises in question."
Plaintiff's attorney obtained a title report from Lawyers Title Insurance Corporation which showed, in addition to an outstanding mortgage, the following exceptions:
No. 7 -- Interest outstanding in the heirs of Aaron Burke.
No. 8 -- Possible outstanding dower interest of Annie Burke, widow of Aaron Burke.
No. 9 -- Possible outstanding dower interest of Charlotte Smith.
No. 10 -- Rights of ingress and egress to a public road will not be insured.
Because of these exceptions, there was no closing in April. Subsequently, plaintiff's attorney obtained an affidavit for the title company as a result of which the title company deleted exceptions Nos. 7, 8 and 9.
Subsequently, the closing was fixed for May 25, 1965. There was no closing at that time because plaintiff insisted upon an abatement of the purchase price due to the fact that
his attorney did not believe that defendants could guarantee ingress and egress from a main road. In addition, on May 25, 1965, when Mr. Zuck went to the office of plaintiff's attorney to close, defendants were in no position to close because Mr. Zuck did not have a deed and ...