Halpern, Crane and Michels. Crane, J.A.D. (dissenting).
[156 NJSuper Page 3] This is an appeal from a summary judgment entered in favor of defendant dismissing plaintiff's complaint. The facts were not in serious dispute and the matter was ripe for disposition by the summary judgment route. Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67 (1954).
Peter A. Mattia, right of way manager for the New Jersey Turnpike Authority (Authority), wrote a letter to plaintiff (as well as to many other property owners), dated November 12, 1973, notifying it that its property would be affected by and needed for the construction of the contemplated "Alfred E. Driscoll Expressway" no later than April 1, 1974. The letter enclosed a right of entry permit and made reference to certain financial benefits by way of interest and taxes that could accrue to plaintiff under the permit.
On or about November 20, 1973 plaintiff executed and delivered to the Authority the right of entry permit which in relevant part granted the Authority "an irrevocable right to enter upon the lands hereinafter described in order to carry out the construction program of the Authority; to include but not be limited to surveys, clearing, grading, drainage and the erection of structures or other improvements." The provision for payment provided:
The Authority agrees to pay interest, at the rate of 8%, on the value of the lands herein described, as ultimately agreed upon, either by negotiations, resulting in an Agreement To Convey; or the results of the ultimate award in condemnation; between the time of execution of this Right of Entry Permit and the time possession ceases; or the Authority and the Owner enter into a contract of purchase; or, in the alternate, the Authority institutes condemnation proceedings.
The right of entry permit was not executed by or on behalf of the Authority. It is also undisputed that the Authority did not utilize the permission given to clear, grade, drain, erect structures or make other improvements on plaintiff's lands, or in any way do physical damage thereto. The parties never negotiated for a sale nor was condemnation commenced or possession ever taken.
By letter dated November 27, 1974, the Authority's attorney advised plaintiff's attorney, among other things, that
because of legal and executive developments*fn1 the Expressway project could not proceed and it was advisable to void the right of entry permit. Shortly thereafter this suit, alleging a breach of contract, was instituted wherein plaintiff sought money damages for the interest and taxes allegedly due under the right of entry permit, as well as damages suffered for its inability to develop or otherwise use its property.
The trial judge heard cross-motions for summary judgment and, without clearly expressing his views, dismissed the complaint and directed the Authority to give plaintiff a formal release from the right of entry permit. Normally, we would remand the matter to the trial judge for findings of fact, and have him state his conclusions of law, as required by R. 1:7-4 and R. 4:46-2. However, as previously indicated, since the facts are not in dispute we deem it advisable to dispose of the appeal on the merits as provided for by R. 2:10-5.
The transactions between plaintiff and the Authority amounted to nothing more than an unexecuted revocable license upon which plaintiff could not predicate a suit for money damages. See Jersey City Merchants Council v. Jersey City , 39 N.J. 42, 50 (1962). Without passing upon plaintiff's failure to offer proofs on the motion as to Mattia's authority to write the letter of November 12, 1973 and enclose the right of entry permit, or the effect of the Authority's failure to execute anything in writing (see N.J.S.A. 27:23-3), we are satisfied no binding agreement ever came into being. The provisions in the right of entry permit for the payment of 8% interest and taxes were contingent upon the parties either voluntarily agreeing upon a price for a conveyance or having such price fixed by condemnation.
Since neither contingency materialized, no enforceable contract existed. At best, the right of entry permit was an offer by plaintiff which was never accepted by the Authority. Under such circumstances, plaintiff could have withdrawn its offer or permit at any time and utilized its property to suit its own ...