On appeal from Superior Court, Chancery Division, Ocean County.
J. H. Coleman, R. S. Cohen and Gruccio. The opinion of the court was delivered by: Gruccio, J.A.D.
Following a bench trial in the Superior Court, Chancery Division, Ocean County, the trial judge ordered specific performance of a contract for the sale of real estate. Defendant Barbara Frazer (seller) contends before us that plaintiffs Dale Barlet, Richard Barlet and Len Cancilla (buyers) failed to comply with the specific terms of a notice making time of the essence of an agreement of sale and, thus, the trial court was compelled to find the agreement unenforceable against defendant.
The facts are essentially uncontested. The parties entered into a contract for the sale of lots 30 and 33 of Block 1.210 in Manchester, New Jersey. Defendant is employed by Brokers General Abstract Corporation and enlisted John Campbell, a co-employee, to negotiate for the sale of her lots. Dale Barlet, one of the purchasers, entered into negotiations with Campbell in October 1985, which culminated in an agreement for sale dated December 21, 1985. The agreement was prepared by Len Cancilla, a licensed New Jersey realtor, and provided for a closing date "on or about February 1, 1986." The agreement did not contain a reference to a specific time on February 1, nor did it contain a clause making "time of the essence." Plaintiffs, thereafter, consulted with counsel who ordered the necessary search, survey and percolation tests; however, the requested data did not arrive on time and closing did not occur on February 1, 1986.
Thereafter, on February 10, 1986, defendant consulted attorney Martin E. Silverman who wrote a letter on her behalf which unilaterally stated, inter alia:
This letter shall serve as notice that Barbara Frazer as seller in the said transaction is making time of the essence with respect to said contract. The contract will be considered a nullity unless title is closed, consideration paid and the deed accepted at the office of Brokers General Abstract Corp., 89 Riverwood Drive, Toms River, New Jersey, on February 20, 1986, at 1:30 p.m. E.S.T.
Counsel for plaintiffs replied to Silverman's letter, enclosed a copy of the preliminary title report, requested that title be taken in the name of Dale Barlet only and suggested closing be at his office on the date and time unilaterally set by defendant. However, Silverman replied that he had no authority to change any of the terms in the contract or in the time of the essence letter.
On February 20, 1986, there was conversation between Silverman and a representative of the law office handling the closing on behalf of plaintiffs indicating that the attorney assigned to handle the closing was ill but that plaintiffs did intend to close that day and, further, that plaintiff Barlet would pick up the necessary closing documents and then go to the address fixed for settlement. Barlet did, in fact, pick up the requisite documents and at approximately 1:30 p.m., left his attorney's office and headed directly to the designated place of closing. Just prior to Barlet's departure at 1:30, a representative of that law firm called Silverman and advised that Barlet was on his way with the closing documents. When Barlet arrived at the address designated for closing, however, defendant had left the office even though she worked there and was paid for work on that date. The delay in arriving for the closing was "an hour to an hour-and-a-half."
The trial judge, upon these facts, concluded that plaintiffs acted diligently considering the fact that the attorney who was to handle the transaction was sick and telephone calls were made to Silverman informing him of buyers' intention to close.
Thus, the court ordered specific performance. We agree and affirm substantially for the reasons expressed by Judge Wiley in his oral opinion of September 18, 1986.
We point out that following Judge Wiley's decision, Gorrie v. Winters, 214 N.J. Super. 103 (App.Div.1986) was published which strictly enforced a contract provision making time of the essence. Without indicating whether or not we would apply Gorrie 's holding to every factual situation involving time of the essence, we note that we are not dealing here with an "express contract [provision] making time a particular of it [which] cannot be ignored by a court of equity." Id. at 107. Rather, here we have a unilateral direction of one of the parties to a contract making time of the essence without prior consultation or negotiation with the other party to fix the time and place of the closing. Indeed, plaintiff Barlet was ready, willing and able to close on February 20, ...