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Iacono v. Toll Brothers

Decided: May 11, 1987.

VINCENT A. IACONO AND ELIZABETH IACONO, HIS WIFE, AND COLTS NECK REALTY, PLAINTIFFS-RESPONDENTS,
v.
TOLL BROTHERS, A PENNSYLVANIA CORPORATION, AND HUNTINGDON, INC., A PENNSYLVANIA CORPORATION AND A SUBSIDIARY OF TOLL BROTHERS, AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS, AND GRANT BROGDEN, INDIVIDUALLY AND SCHLOTT REALTORS, INC., DEFENDANTS. TOLL BROTHERS, A PENNSYLVANIA CORPORATION AND HUNTINGDON, INC., A PENNSYLVANIA CORPORATION AND A SUBSIDIARY OF TOLL BROTHERS, THIRD PARTY PLAINTIFFS-APPELLANTS, V. SCHLOTT REALTORS, INC., THIRD PARTY DEFENDANT-RESPONDENT, AND MONMOUTH COUNTY BOARD OF REALTORS, A NEW JERSEY CORPORATION, AND MONMOUTH COUNTY MULTIPLE LISTING SERVICE, THIRD-PARTY DEFENDANTS



On appeal from the Superior Court, Chancery Division, Monmouth County.

Furman, Shebell and Stern.

Per Curiam

[217 NJSuper Page 476] Defendant Toll Brothers, a corporation, appeals from judgment granting specific performance of a contract for the sale of real property to plaintiffs and dismissing its third party complaint

against Schlott Realtors, in accordance with findings and conclusions by the trial judge following a five-day nonjury trial.

On March 14, 1985 plaintiffs signed an agreement to purchase a lot and a dwelling house to be constructed in Colts Neck Estates, a development of about 20 lots. The property had been listed with Monmouth County Multiple Listing Service at a purchase price of $243,000. The agreement of sale was for $225,000. A lot premium of $18,000 was imposed. Plaintiffs were shown the development, including a model home, by their own realtor and by defendant Grant Brogden, a salesman for Schlott Realtors, the listing broker. They paid a deposit of $19,000 upon the execution of the agreement of sale.

The agreement of sale was not signed by any officer or employee of Toll Brothers, the developer. Brogden signed as a witness. The agreement provided:

This Agreement has been obtained by Seller's salesman or agent who has no authority to bind Seller to this Agreement. This Agreement shall not be binding upon Seller unless signed by Seller within thirty (30) calendar days from the date below. Otherwise, the deposit money will be returned to the Buyer without interest, and, upon return of the deposit to Buyer, this Agreement shall be returned to Seller.

The trial judge concluded that, notwithstanding the home office acceptance clause, a bilateral agreement had been entered into by plaintiffs' acceptance, in signing the agreement of sale, of an offer from Toll Brothers in the multiple listing form submitted to them by Brogden. To enforce the home office acceptance clause, according to the trial judge, would be contrary to public policy. We disagree.

The multiple listing form set out, in addition to purchase price, location of the house, lot size, number and dimensions of the rooms, appliances to be supplied and a general description. The agreement of sale provided numerous additional restrictions, reservations and terms. Although drawn by Toll Brothers as seller, some of its provisions benefitted the Iaconos as buyer, e.g., the buyer's option to cancel if construction was not

begun within five months or substantially completed within eleven months.

According to 1 Corbin on Contracts (2 ed. 1963), § 50 at 195 and § 61 at 252:

An owner who merely "lists" his property with a land broker for sale or rent may thereby make no promise or offer of any kind. His communication to the broker may be no more than an invitation for the submission of proposals that the owner may or may not accept. In such a ...


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