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Salvatore v. Trace

Decided: August 27, 1969.

PAUL J. SALVATORE, PLAINTIFF-APPELLANT,
v.
HARRY W. TRACE AND ETHEL Z. TRACE, DEFENDANTS-RESPONDENTS



Goldmann, Kolovsky and Carton. The opinion of the court was delivered by Carton, J.A.D. Kolovsky, J.A.D. (dissenting).

Carton

Plaintiff-buyer brought this action against defendants for specific performance of a realty contract. In the alternative, he sought damages for breach of the contract of sale. After a trial without a jury, the court dismissed his action and granted defendants' counterclaim for rescission of the contract. Plaintiff appeals.

Defendants, the owners of certain lands in Gloucester Township, entered into a written contract on August 30, 1967 to sell to plaintiff a portion of those lands, designated in the contract as Lots 13 to 19, inclusive, on a certain map, and

[i]n addition a piece of ground of at least 25 foot frontage on Oak Avenue being part of the premises owned and occupied by the Sellers. The depth to be at least the minimum requirement by the Burough [sic] or Township ordinances * * *.

The agreed price was $3500 of which $25 was paid as a downpayment, with the balance payable at the time of settlement. The contract provided that "Settlement shall be made on or before the 8th day of December A.D. 1967, said time to be of the essence of this Agreement, unless extended by mutual consent in writing endorsed hereon."

By the terms of the contract, the sellers were obliged to convey the property free and clear of all liens, encumbrances and easements (with certain specific exceptions not here pertinent). The contract further provided that "the title to the herein described lot or piece of ground shall be good and marketable or such as will be insured by any reputable Title Insurance Company in the City of Philadelphia, or the adjacent counties, at the regular rates."

The numbered lots fronted on Huntington Street, and part of the rear of the property abutted Oak Avenue, both of which were paper streets shown on the map. The provision relating to the additional 25 feet was apparently included in the agreement for the purpose of providing the purchaser with additional access to Oak Avenue.

The contract made no reference to any subdivision approval that might be required to convey the property, nor as to who was to obtain it. Nor is the record entirely clear as to what steps were taken by plaintiff or defendants to obtain the subdivision approval, but it is clear that defendants knew a subdivision was necessary before good title could be conveyed to the purchaser, and, in fact, a subdivision plan was submitted to the planning board by them or with their assent. It also seems clear that the proposed subdivision came before the board on three separate occasions, at the first of which it was not considered at all because no one appeared to make the formal presentation. On the second occasion the board refused to approve it in the form submitted; but, at the third meeting, the board finally approved it in its revised form.

Sometime after the contract was executed, plaintiff retained an engineer to prepare a subdivision map. Defendant Harry W. Trace testified that before the map was submitted he examined it, went over the information with the engineer as to the dimensions of the property to be conveyed, and then affixed his signature on the face of the map. The township planning board indicated, apparently informally, that it would not approve the proposed subdivision in the form submitted because the subject realty, including the 25-foot frontage on Oak Avenue, would have the effect of creating a small parcel isolated from the rest of the Trace property.

Mr. Trace testified that plaintiff, after learning that the subdivision had not been approved, came to his home and became "hot under the collar," accusing Trace of having "fouled up the subdivision approval." However, Trace agreed to resubmit the subdivision for approval. He testified: "I tried to please the man so that we could push it through for him, so that he could get the ground, yes, sir." A conference took place between defendants, the engineer and plaintiff at which it was agreed that the frontage on the additional piece on Oak Avenue would be increased

to 31.29 feet. Trace further testified that plaintiff and the surveyor came to his home and "wanted to know if they couldn't have a few more feet on Oak Avenue, of which my wife and I agreed to, so that we could have it passed for him."

The subdivision map was accordingly revised on that basis and resubmitted to the township planning board, which approved it on November 28, 1967. The map bears the following certification by Mr. Trace: "It is hereby certified that the lands subdivided by this map are owned by title of record and that consent to the approval of said map is given."

The map was then sent to the township committee, which approved it three days later, on December 1. On December 5 the township engineer affixed his certification that the subdivision complied with the applicable statutes and ordinances. The map was then sent to the county planning board for approval.

Neither party tendered performance on December 8, plaintiff's testimony being that he did not attend the closing because Mr. Trace had told him a few days earlier that he had not yet gotten clear title. According to plaintiff, the reason was that the county planning board approval had not yet been given.

Although it is not clear that county board approval was required before good title could be delivered (See N.J.S.A. 40:55-1.18 and N.J.S.A. 40:27-7), defendants also assumed that such approval was necessary. This assumption evidently originated with the title company which, having been requested by the buyer to issue a title policy, had made a report of title to him. A letter from the planning director of the county planning board (which, incidentally, did not approve the subdivision until January 18, 1968) to the title company, a copy of which was sent to the secretary of the township planning board, indicates that the map was referred to the county board before filing, for a

determination whether the proposed subdivision would adversely affect drainage conditions on a county highway.

Trace's explanation as to why the settlement did not take place on December 8 shows that he was under the same impression as plaintiff:

Q. Were you able to give good title on December 8th, 1967?

A. There was no place to make settlement.

Q. Were you able to convey to Mr. Salvatore good title which would remove the sub-division exception that was on the report of title?

A. I didn't care to do so.

Q. You didn't care to do so; why was that?

A. Because the agreement called for the settlement on that particular date.

Q. I am talking about that particular date, December the 8th, 1967, you were not able to give him a deed which would give him clear title and have the title company remove exception No. 8 calling for approval by the proper authorities concerning the sub-division; isn't that right?

A. Yes, sir.

Nothing further occurred until December 13 when plaintiff telephoned Trace. Trace referred him to his attorney, whom he had consulted for the first time that day. On the following day, defendants' attorney wrote plaintiff a letter purporting to confirm a telephone conversation with him earlier that day to the effect that the Traces were terminating the contract "because settlement was not made on the date called for under the terms of the agreement." A check of $25 representing return of the deposit was enclosed.

On January 4, 1968 plaintiff's attorney wrote defendants' attorney informing him that the buyer had been ready, and was ready at all times, to perform his part of the agreement, and in a separate letter of the same date, gave notice that settlement was scheduled for January 15, 1968. Defendants made no response and did not attend the closing scheduled for January 15.

The trial judge, in ruling in defendants' favor, held that the reference to the 25-foot strip in the contract rendered

it too indefinite to be enforceable and that the deficiency was not remedied by Trace's certification on the subdivision map that he owned the lands and consented to the map's approval. He also ruled that the buyer was not entitled to recover because he had not sought out defendants to close title on December 8, 1967, the contract having specified that time was to be of the essence.

We conclude that neither of these grounds constituted a sufficient basis for dismissal of the complaint.

The rule is well settled that specific performance will not be decreed unless the terms of the contract are expressed in such fashion that the court can determine, with reasonable certainty, the duties of each party and the conditions under which performance is due. Kirsch v. Zubalsky , 139 N.J. Eq. 22 (Ch. 1946). See Restatement, Contracts , § 370, at 673 (1932). This rule applies where the contract involves the sale of realty, in which case there must be an adequate description of the premises to be conveyed.

We agree that the contract reference to "a piece of ground of at least 25 foot frontage on Oak Avenue" lacked definiteness and standing alone could not be enforced. When the planning board informally refused to approve the map in the form first submitted because it would leave a small piece of land in isolation, the parties met the engineer and agreed to the revised 31.29 foot frontage on Oak Street required to meet planning board approval. The subdivision map was revised accordingly. The map bears, not only the signature of Trace to the certification, but also notations on it specifically designating the lands to be retained by the sellers and those to be conveyed to the purchaser-plaintiff. Trace admittedly was authorized to act for his wife in taking this action.

When Trace certified on the subdivision map that he owned the land and consented to approval of the map, any indefiniteness in the contract was eliminated by supplying a definite and precise description of the land to

be sold. The contract and subdivision map must be read together and so read they clearly express the intention of the parties as to the lands to be conveyed. See 4 Williston, Contracts (3 ed. 1961), § 583, at 145.

We turn now to the question whether plaintiff should be denied relief because time was made of the essence in the contract. Ordinarily, equity does not regard time as of the essence of an agreement. When a certain period of time is stipulated in the contract for its completion, or for execution of any of its terms, equity treats the provision as formal rather than essential. Delay, unless willful or unreasonably long or prejudicial to the other party, is not of itself a ...


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