For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Goldmann and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.
On July 20, 1965 plaintiff filed a complaint in the Law Division seeking damages from defendants, who are professional engineers and land surveyors, arising from an alleged error committed by them in 1952. After filing an answer, asserting that the action was barred by the Statute of Limitations, defendants moved for summary judgment on the ground that the action was so barred by said Statute. The court granted the motion. The plaintiff appealed to the Appellate Division. Before argument in the Appellate Division this Court certified the appeal. R.R. 1:10-1A.
At this stage of the proceedings we are required to assume the truth of the allegations of the complaint except insofar as they are contradicted by concessions of the plaintiff contained in the interrogatories and admissions. Wall v. Hudson County Park Com., 80 N.J. Super. 372 (App.
Div. 1963), certification denied 41 N.J. 198 (1963); Amabile v. Lerner, 74 N.J. Super. 443 (App. Div. 1962).
The facts as elicited from those sources are as follows:
On March 21, 1952, Ida Pack retained John C. Fellows to furnish her with a survey, land description and acreage calculation of two certain adjacent parcels of realty in Piscataway Township. Defendant shortly thereafter delivered the survey, description and acreage calculation to Mrs. Pack. The acreage calculation as thus delivered was 49.5 acres and 7.94 acres respectively. On September 15, 1952, Mrs. Pack conveyed the lands to New Market Poultry Farms, Inc. (New Market). She allegedly was compensated for the conveyance on the basis of the above acreage. In consideration of the conveyance and her payment of $9,100 in cash she received 30 shares of common stock and 70 shares of non-cumulative preferred stock. At the time of this transfer there were 70 shares of common stock issued and outstanding; the record does not indicate the number of preferred shares issued. Mrs. Pack presently owns "1 share of common (qualifying)".
On June 6, 1963, New Market entered into an agreement to sell the above lands to Foxfield Homes, Inc. The lands were described as per the Fellows survey. Although no exact acreage was specified in said agreement, the following clause appears therein:
"ARTICLE X. The purchase price payable hereunder may be modified as follows: Buyer shall, at Buyer's own cost and expense, obtain a calculation from an engineer licensed under the laws of the State of New Jersey as to the quantity of land contained within the boundaries of the description hereto annexed as Schedule A, said calculation to be subject to verification by licensed engineer designated by seller with arbitration in event of dispute. In the event that the land agreed to be conveyed hereunder according to said calculation contains total acreage of fifty-six (56) acres or more, there shall be no adjustment in the total purchase price, as aforesaid; and in the event that the land according to said calculation contains total acreage of less than fifty-six (56) acres but fifty (50) acres or more, the total purchase price shall be reduced by an amount calculated at the rate of Two Thousand Five Hundred
($2,500.00) Dollars for each acre by which the total acreage is less than fifty-six (56) acres; and in the event that the land according to said calculation contains total acreage of less than fifty (50) acres, the Buyer, at his election, may accept such total acreage as the land contains, with a reduction of the purchase price by an amount calculated at the rate of Two Thousand Five Hundred ($2,500.00) Dollars for each acre by which the total acreage is less than fifty-six (56) acres, or may receive from the Seller a refund of the Buyer's down payment made hereunder, whereupon this agreement shall wholly cease and terminate and neither party shall have any further claim against the other by reason of this agreement. In the event that the purchase price is reduced by reason of the calculation aforesaid, the reduction shall be effected by diminishing the amount of the purchase money mortgage referred to above and by diminishing the payment due on July 2, 1970 to the extent of such diminution of the purchase price."
On August 7, 1963 in connection with said pending sale, a new survey and acreage calculation was obtained from Fellows and Read, a partnership of which John Fellows was a partner. This calculation disclosed the acreage of the two tracts as being 54.43 acres and 7.6 acres respectively. Defendants admit that the later calculation, which is 4.59 acres in excess of the earlier calculation, is correct.
On October 25, 1963 Mrs. Pack assigned to New Market all of her right, title and interest in and to all rights, claims, etc., which she had against Fellows individually or Fellows and Read, a partnership. New Market filed its complaint on ...