[212 NJSuper Page 680] These consolidated matters came on before the court for brief testimony and resolution pursuant to R. 4:67-5. The factual
positions of each of the parties have been fully set forth in the affidavits and certifications on file as clarified by the testimony taken. Each party fully briefed the matter prior to the hearing and each responded to the court's invitation to file post-hearing briefs. There are no genuine issues as to any material fact. The matter is ready for disposition.
The case involves the resolution of the rights of purchasers under two formal contracts signed by the seller for the sale of the same parcel of property. The parties believe that a so-called "3-day attorney review clause" contained in the first contract is the critical point on which this litigation turns. For reasons set forth below, I find that it is not. However, if incorrect in that conclusion and assuming that the clause is implicated, I find that it affords no protection to the defendant-seller under the first contract. The facts are as follows.
Defendant, Dolores Isoldi, was, prior to April 28, 1986, the sole owner of a substantial residence on property known as 18 Georjean Drive, Holmdel, New Jersey. Her profession is that of a real estate broker. She has been in active practice in that occupation for some 12 years and is presently associated with the Weichert agency.
Having decided to sell her house she listed it through the Weichert agency which, in turn, placed it on multiple listing. A number of prospective purchasers expressed interest in the property.
Plaintiffs, Zapanta, both of whom are doctors of medicine admitted to practice in New Jersey, very much desired to purchase the home. They had visited it on April 14, 1986 accompanied by Elizabeth Thomas, a real estate broker associated with the MacKenzie-Morris realtors. She and Mrs. Isoldi were acquainted professionally. Their offices are within three doors of each other on the same side of Main Street in Holmdel. They discussed price and by a series of negotiations agreed on $432,000 to be paid by the Zapantas. In addition, the selling broker, Thomas, agreed to reduce her commission due on the
sale by $3,000 so that Isoldi was, in effect, receiving $435,000 for the house.
Realizing that Isoldi was still attempting to sell the house for a higher price to any other interested party, the Zapantas pressed to obtain a signed contract as soon as possible. The contract was prepared by Thomas on a standard, printed, "realtor" form on which she inserted certain typed information. Also attached was an addendum page containing paragraphs relating to engineering inspection, termite inspection, warranties, certificate of occupancy and contingency dates. The contract was given to the Zapantas who immediately, on Saturday, April 19, 1986, took it to their attorney, Vincent Maltese, for his review. He went over it with them and approved it. They signed it.
Included, at their request, in the typed information on the printed form were these statements:
PURCHASER'S AGREE TO WAIVE THE ATTORNEY REVIEW PERIOD.
and, in a separate place,
Purchaser represents that their attorney has reviewed this contract and has approved same in its present form.
At that same meeting, the Zapantas verbally authorized Maltese to negotiate and agree to any reasonable terms in order to assure their obtaining title to the house. After signing the contract, they delivered it on that same day (Saturday, April 19) to Thomas, who, in turn, brought it to Isoldi and left it with her for signature.
Isoldi and her daughter had scheduled a trip on Monday, April 21, to look at prospective college placements for the daughter. She expected to return on April 24. On Sunday evening, April 20, she called Thomas, advised her that she had decided to sign the Zapanta contract and stated that she would drop it off at Thomas' office the next day. Early in the morning of April 21, she brought the contract to the office of her attorney, Joseph Meehan, discussed it with him, signed it
and then delivered it to Thomas' office. Thomas was not present at that time.
The contract, when delivered, was not dated. Although signed and delivered on April 21, Isoldi deliberately inserted alongside her signature on the printed form and above her signature on the addendum, the date "4/22/86." She testified that being quite familiar with the "3-day attorney review clause" she believed that she could, and indeed did intend, in that fashion, to extend the beginning time for the attorney review period from April 21 to April 22 so that she could reassess her options on her return on April 24.
When Thomas came to her office later in the day on April 21 she found, as expected, the signed contract. It also seems probable that Thomas, at that point, called Isoldi at home to acknowledge receipt of the contract. Isoldi testified that during the conversation she told Thomas of the "4/22/86" dating and stated her reason for so doing was the two-day trip she was starting later that day with her daughter. Thomas does not remember that item of the conversation. I believe her when she says so. That lack of memory -- given the real estate experience of both; the Zapantas' desire to pin Isoldi down to a signed contract and Thomas' interest in a commission -- causes me to infer that it was a passing reference at best and not emphasized by Isoldi as critical in her mind, then. In any event, Thomas did not notice the "4/22/86" notation at that time. Vincente Zapanta picked up the signed contract that same day right after the Thomas call to Isoldi. He likewise did not immediately note the "4/22/86" notations made by Isoldi. When he did notice them within a day or so, he questioned Thomas who said it had something to do with a short trip Isoldi was making with her daughter for the purpose of looking at prospective colleges.
In the afternoon of April 21, Meehan called Maltese (who was not then in his office) to discuss two minor changes which Isoldi had indicated to him earlier in the day that she wished made.
The first was permission to remove an antique medicine cabinet from a utility room in the house without responsibility to replace it with a substitute. The second was to change the termite clause to provide that any termite damage discovered would be the responsibility of the buyers to repair but that if repairs exceeded $500 the buyers would have the right to void the contract. As written, the contract provided that the seller had responsibility to make such repairs but if they exceeded $500 the purchaser had to pay the excess or either party could void the contract. Maltese, acting on the prior authorization of his clients, immediately agreed to the changes. Meehan was to confirm their understanding in writing.*fn1 He did so that same day and mailed the confirmatory letter to Maltese with a request to sign and return a copy to confirm the Zapantas' assent to the changes. That letter was received by Maltese on April 23. On that day he prepared and submitted a mortgage application for the Zapantas. The Zapantas themselves made a separate mortgage application to another financial source -- also on April 23.
On April 24, Maltese signed the confirmation on the copy of Meehan's April 21st letter and directed that it be mailed back to Meehan. The Maltese reply is postmarked April 25. It was received by Meehan on April 28.
On April 24, Isoldi returned home and received a better offer ($445,000) for the house. She reached Meehan at his home by telephone in the early evening, told him of the offer and directed him to cancel the Zapanta contract. He told her that he would prepare the necessary letter of termination on his
return to his office that evening and instructed her to come to his office the next day to pick it up. Isoldi also reached Thomas at her home at about midnight that night and told her essentially the same thing. Thomas was not particularly pleased with that information. Isoldi went to Meehan's office early in the morning of April 25. He had drafted a letter to Maltese dated April 24, 1986. The body of it is as follows:
At the time my letter of April 21, 1986 was forwarded to you, my client was in the process of leaving New Jersey on a trip out of State with her daughter, and my client did not return to New Jersey until late yesterday. Upon her return to New Jersey, and upon reviewing my letter to you of April 21, 1986, Mrs. Isoldi contacted me, and advised me that she did not agree with the terms of my letter of April 21, 1986.
Accordingly, pursuant to the Attorney Review provision of the Broker's Contract herein, you are hereby notified that the Contract is not acceptable to me, and that the proposed sale of the premises by Mrs. Dolores Isoldi to Dr. and Mrs. Vincente Zapanta is terminated. The within termination of the contract ...