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Melcer v. Zuck

Decided: July 5, 1968.

CHAIM MELCER, PLAINTIFF-RESPONDENT,
v.
BENJAMIN ZUCK AND ROSE ZUCK, DEFENDANTS-APPELLANTS, AND R.G.B. CONSTRUCTION CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT



Gaulkin, Lewis and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.

Kolovsky

[101 NJSuper Page 579] As amended, the complaint filed herein by plaintiff, the purchaser named in a contract for sale of lands dated March 13, 1965, sought specific performance with an abatement by reason of the vendors' "inability

to provide a means of ingress and egress to" the premises described in the contract, or in the alternative, damages for breach of contract. Joined as parties defendants were the sellers, Mr. and Mrs. Zuck and R.G.B. Construction Co., Inc. (R.G.B.) to which the Zucks had conveyed the property on January 22, 1966, taking back as part of the purchase price a purchase money bond and mortgage of $20,000.

After a plenary trial the trial court ruled -- and plaintiff does not challenge the ruling -- that R.G.B. was a purchaser for value and as such entitled under R.S. 46:21-3 to hold the property free from any claim of plaintiff under his recorded contract of sale.

However, the trial court further ruled that defendants Zuck had breached their contract so that plaintiff was entitled to the alternative relief prayed, damages from Mr. and Mrs. Zuck for the "loss of the bargain, * * * the difference between $28,750, the contract price as abated, and $40,230, the sales price to R.G.B. Construction Co. Inc." (95 N.J. Super., at p. 260). Judgment was entered for the difference, $11,480, with interest from October 22, 1965. The Zucks appeal.

We reverse. We are satisfied from our review of the record that plaintiff did not establish a claim for relief either under the terms of the written contract of March 13, 1965 or by reason of what occurred thereafter.

We turn first to the contract of March 13, 1965, the basic instrument dealing with the rights and obligations of the parties, their "single and final written memorial," 30 Am. Jur. 2 d, Evidence, ยง 1016, p. 152. We are therefore not concerned with the interpretation of, or indeed the enforceability of, a prior "offer to purchase" on a printed form of "Monroe Bowne, real estate broker," signed by plaintiff and accepted by Zuck with a provision for a 10% brokerage commission. We note, however, since similar provisions were incorporated in the March 13 contract, that the "offer to purchase" provided that

"Access from main road to property guaranteed. Seller guarantees not less than 295 acres. If survey shall disclose less than 295 acres, adjustment will be made at $100.00 per acre."

The formal contract of March 13, 1965 had been insisted on by Zuck. It was prepared by plaintiff's attorney. The description of the property was copied from a title report of Lawyers Title Insurance Company which Zuck had obtained prior to his acquisition of the property in 1953. That title report listed the same four exceptions (quoted at 95 N.J. Super., at p. 255) as were set forth in the title report dated April 12, 1965 later obtained by the purchaser's attorney from the same title company. As the trial court observed, the first three exceptions relating to heirs and dower rights were thereafter deleted on submission of affidavit proofs; the fourth, of particular significance to the present litigation, was not. It read:

"Rights of ingress and egress to a public road will not be insured."

The contract of March 13, 1965 provided for the sale by the Zucks to plaintiff of a 298.54-acre tract in Jackson Township on or before April 20, 1965 for $29,750 -- $2,975 by deposit, the balance $26,775 at title closing, with provision for a reduction in the price "at the rate of $100 per acre or fraction thereof" if an accurate survey disclosed that the premises contained less than 295 acres. The premises were described by metes and bounds and as lots 31 to 40, inclusive (with no indication of the map on which the property was designated by those lot numbers), subject, inter alia, to the following:

"Subject to the rights of the public, if any, in and to any public roads running in, through or over the premises hereinbefore described.

Subject to rights, public and private, in roads, streets or avenues abutting the hereinabove described premises.

Subject to any and all grants to public utility companies pertaining to the hereinabove described premises."

Pertinent to the issues presented in this litigation are the following additional ...


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