On appeal from the Superior Court, Chancery Division, Monmouth County.
Furman, Long and Scalera. The opinion of the court was delivered by Furman, P.J.A.D.
[225 NJSuper Page 88] Defendant Toll Brothers, a corporation, appeals for the second time during the course of this litigation from a judgment of
specific performance of a contract for the sale of real property to plaintiffs. We affirm.
Our prior opinion, reversing and remanding with directions to the trial court, is published at 217 N.J. Super. 475 (App.Div.1987). That opinion sets forth the background facts. We upheld the enforceability of a 30-day home office acceptance clause in what was otherwise a complete and integral agreement of sale specifying the terms of sale, describing the property and signed by plaintiffs. Only the signature of Toll Brothers was lacking. The home office acceptance clause 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 rested his first judgment of specific performance on the alternative grounds of nonenforceability of the home office acceptance clause and equitable estoppel against Toll Brothers. We reversed on the first ground and reversed and remanded on the second ground.
At trial both plaintiffs testified to their awareness that Toll Brothers' signature on the agreement of sale was necessary to make it binding. Accordingly, we rejected the trial judge's determination of reasonable reliance by plaintiffs upon conduct by Toll Brothers consistent with a binding contract during the 30-day period subject to the home office acceptance clause.
We remanded, rather than reversing outright, because of our recognition that the trial judge had relied upon silence and conduct of Toll Brothers after, as well as during, the 30-day period. He set out a series of dealings between the parties, which, he found, induced reliance by plaintiffs that Toll Brothers had accepted the agreement of sale. Because of their continuation after expiration of the 30-day period, coupled with Toll Brothers' failure to notify plaintiffs that it was not accepting the contract, we hypothesized that the alternative holding
of equitable estoppel may have been justified on the record. We commented at 217 N.J. Super. 479:
After 30 days within which the agreement of sale was not signed by Toll Brothers and returned to plaintiffs, the pattern of endorsement of construction changes, partial payment for them and acceptance and ...