Opinion
10-02-1928
MERLIS et al. v. G. & M. CORPORATION.
O'Brien & Tartalsky, of Jersey City, for complainants. Morris Isserman, of Newark (Morris E. Barison, of Jersey City, of counsel), for defendant.
Suit by Nathan Merlis and another against the G. & M. Corporation. Decree for complainants.
O'Brien & Tartalsky, of Jersey City, for complainants.
Morris Isserman, of Newark (Morris E. Barison, of Jersey City, of counsel), for defendant.
FALLON, Vice Chancellor. On June 23, 1927, complainants, as vendees, entered into a contract with the defendant, as vendor, for the purchase of certain lands and premises in Newark, N. J., under the terms of which complainants paid to defendant, as part of the purchase price, the sum of $1,000. It provides for a deed of warranty, free and clear oft all incumbrances, except as therein mentioned, at the office of complainants' solicitors, O'Brien & Tartalsky, 1 Exchange Place, Jersey City, N. J., between the hours of 9 a. m. and 4 p. m., on August 10, 1927, and also provides:
"It is understood and agreed that the buildings upon said premises are all within the boundary lines of the property as described in the deed therefor, and that there are no encroachments thereon and that the buildings comply with municipal ordinances and regulations and the provisions of the New Jersey State Tenement House Act as enforced by the board of tenement house supervision, to be shown by the report of the department or board enforcing the same where such ordinances, regulations, and said act apply."On August 2, 1927, complainants' solicitors addressed a letter to the solicitor of the defendant, calling attention to certain encroachments and violations which were said to be chargeable against the premises, containing the following recital:
"In the event that your client fails to convey the premises in accordance with the terms of the contract on the date fixed for title, we hereby notify you that we will reject same and will require the return of the deposit money, together with interest and the costs of the examination of title and survey."
On August 10, 1927, the date fixed for the closing of title, as per contract, the defendant Bailed to appear at the time and place mentioned in the contract for the closing thereof. The defendant concedes that at this time the building was not within the boundary lines of the property as described in the deed therefor, fire escapes, attached to the building, encroached on Cliff street, a public thoroughfare, a distance of 3 1/2 feet, and the building was charged with certain tenement house violations. On August 12, 1927, complainants mailed to the clerk in chancery their bill of complaint in the case sub judice, which was filed August 13, 1927. A letter bearing date August 11, 1927, addressed by the solicitors of defendant to the solicitors of complainants was received by them August 12, 1927, after the bill of complaint was mailed to the clerk of the court for filing, wherein, among other things, it is said:
"We beg to advise you that we are in a position to convey the premises to your client Merlis in accordance with the terms of the agreement. * * * In reference to your question in paragraph D we beg to advise you that we have already given out a contract for the removal of the fire escapes and will complete that within the course of the next two weeks. * * * We would suggest that the conveyance be made immediately upon our completing the necessary changes to remove the encroachments as set forth in your letter."
Paragraph D, referred to, relates to fire escapes encroaching on Cliff street. By letter dated August 13, 1927, the solicitors of the complainants addressed a letter to the solicitor of the defendant which reads as follows:
"Your letter dated August 11th, was received late on the 12th, subsequent to the preparation and mailing of the bill of complaint. We note the contents of your communication and have taken the matter up with our client. In view of your statement that you can remove the objections to the title within the course of two weeks, our client accepts your proposition, and we therefore consent to a stay of the proceedings under the bill. It is understood and we agree that the title shall be closed in accordance with the terms of the contract at one o'clock in the afternoon on Thursday, August 25th, 1927, at this office. Upon compliance, we will consent to the dismissal of the bill without costs to either party; otherwise we will proceed."
Defendant's solicitors addressed a letter to the solicitors of complainants, bearing date August 19, 1927, which reads as follows:
"In reply to yours of August 13th, we beg to advise that our clients have already ordered the work to be done on the fire escapes and expect them to complete same shortly. We are waiting to order a tenement house inspection and will do so when the fire escapes are completed so that we can give you a complete report including everything. We trust this will be satisfactory."
I conclude that the solicitors of the defendant tacitly acquiesced in the statement contained in the letter of August 13, 1927, addressed to the solicitor of the defendant by the solicitors of the complainants, wherefrom it may be reasonably inferred that it was intended thereby to make time essence of the contract. The defendant again defaulted in fulfilling its contract. No one attended in behalf of the defendant at the office of the solicitors of the complainants on Thursday, August 25, 1927, at 1 o'clock in the afternoon. One of the solicitors of the defendant called at said office at approximately 2 o'clock in the afternoon of said date, and tendered to the solicitors of the complainants a deed for the property, which was refused by said solicitors. It is manifest from the proofs, and conceded by the defendant, in part at least, that on August 25, 1927, when the aforesaid deed was tendered, the building was charged with certain violations of the Tenement House Act, fire escapes attached to the building encroached on a public thoroughfare a distance of 3 1/2 feet, tile coping on the south side of the building encroached about 1 1/4 inches on adjoining property, and a concrete wall running from the building to the street projected three-quarters of an inch on adjoining property. The two encroachments last mentioned were not removed until September, 1928.
It is urged in behalf of the complainants that their aforesaid letters of August 2, 1927, and August 13, 1927, indicate that time was to be regarded as of the essence for the performance of the contract, and they particularly urge that the letter of August 13, 1927, manifests same, and that, inasmuch as the defendant did not attend at the office of complainants' solicitors on August 27, 1927, at 1 o'clock in the afternoon, and fulfill its contract, complainants' solicitors were warranted in thereafter declining to accept from the solicitor of the defendant a deed for said property, even though their objections, based on encroachments and tenement house violations, were not tenable. It is reasonably inferable, from the proofs, that the complainants manifested to the defendant that time was to be regarded as of essence in the performance of the contract. Such is indicated by:.
The aforesaid letter of August 2, 1927, wherein the solicitors of the complainants say:
"In the event that your client fails to convey the premises in accordance with the terms of the contract on the date fixed for title, we hereby notify you that we will reject same and will require the return of the deposit money, together with interest and the costs of the examination of title and survey."
The reply thereto by the solicitors of the defendant, under date of August 11, 1927, wherein they say:
"We beg to advise you that we are in a position to convey the premises to your client Merlis in accordance with the terms of the agreement. * * * We beg to advise you that we have already given out a contract for the removal of the fire escapes and will complete that within the course of the next two weeks. * * * We would suggest that the conveyance be made immediately upon our completing the necessary changes to remove the encroachments as set forth in your letter."
The aforesaid letter of August 13, 1927, wherein complainants' solicitors say:
"In view of your statement that you can remove the objections to the title within the course of two weeks, our client accepts your proposition, and we therefore consent to a stay of the proceedings under the bill. It is understood and we agree that the title shall be closed in accordance with the terms of the contract at one o'clock in the afternoon on Thursday, August 25th, 1927, at this office. Upon compliance, we will consent to the dismissal of the bill without costs to either party; otherwise, we will proceed."
And the fact that neither the defendant nor its solicitors objected to complainants fixing of Thursday, August 25, 1927, at 1 o'clock in the afternoon, as the time for the closing of the title in accordance with the terms of the contract. While the above quotation from the letter of August 2, 1927, addressed by complainants' solicitors to the solicitors of the defendant, might reasonably be regarded as "'politely to apply a spur' to the defendant to speed her in the performance of the contract" (Wyatt v. Bergen, 98 N. J. Eq. 502, 505, 130 A. 595, 596), such may not reasonably be ascribed to the attitude manifested in complainants' behalf, by the aforesaid letter of August 13, 1927.
In equity time is not ordinarily regarded as of the essence of the contract, and therefore specific performance may he decreed in cases where justice requires it, even though literal terms of stipulations as to time have not been observed, but, as declared by the court in Pyatt v. Lyons, 51 N. J. Eq. 308, 27 A. 934:
"The relief invoked is not a matter ex debito justitise; the bill for specific performance is addressed to the extraordinary jurisdiction of a court of equity to be exercised according to its discretion, and he who seeks performance of a contract for the conveyance of land must show himself ready, desirous, prompt, and eager to perform the contract on his part,"
Substantially the same rule was stated in Meidling v. Trefz, 48 N. J. Eq. 638, at page 644, 23 A. 824, 825, wherein it is said:
"The general rule is that he who seeks performance of a contract for the conveyance of land must show himself ready, desirous, prompt, and eager to perform the contract on his part. Therefore, unreasonable delay in doing those acts which are to be done by him will justify and require a denial of relief. No rule respecting the length of delay which will be fatal to relief can be laid down, for each case must depend on its peculiar circumstances."
In Page v. Martin, 46 N. J. Eq. 585, 20 A. 46, it is said relief in the nature of specific performance, rests not upon what the court must do, but rather upon what, in view of all the circumstances, it ought to do. I have in mind that our Court of Errors and Appeals, in Gerba v. Mitruske, 84 N. J. Eq. 141, 94 A. 34, held that a vendor is entitled to a decree of specific performance, where time of performance is not of the essence of the contract, if he can, at the time of the decree, give a clear title; that as a general rule, in equity, time is not deemed to be of the essence of the contract unless the parties have so treated it, or it necessarily follows from the nature and circumstances of the contract. I also have in mind that the defendant's solicitors, in their aforesaid letter of August 11, 1927, declared they were in a position to convey the premises to the complainants in accordance with the terms of the agreement. Such was not the fact. The defendant well knew that at said time the property in question was not only subject to tenement house violations, but that the fire escapes encroached upon the public street a distance of 3 1/2 inches, tile coping on the south side of the building encroached about 1 1/4 inches on adjoining property, and a concrete wall running from the building to street encroached three-quarters of an inch on adjoining property.
If August 27, 1927, at 1 o'clock p. m. be disregarded as the time definitely set for the closing of the title, and the time so fixed were not to be regarded as of the essence of the contract, and the defendant remedied the condition complained of by the complainants within a reasonable time thereafter, the complainants could not then reasonably object to a decree being made against them, but the fact that the defendant indulged in such procrastination as is apparent in this case in causing to be removed the incumbrances complained of, the final clearance of which being effected in September, 1928, 14 months after the making of the contract, and one year after the title, under the terms of the contract, should have passed, manifests clearly that it was not "ready, desirous, prompt, and eager to perform the contract on its part." The complainants (vendees) were apparently very willing to consummate the purchase of the property as late as August 25, 1927, notwithstandingthe filing of their bill herein, but the defendant (vendor) did not exercise such diligence as would have enabled it to have removed the encroachments and tenement house violations which it well knew existed, within a reasonable time from and after the date of the contract. The defendant has not offered any substantial reason why it delayed effecting the removal of the encroachments in question until September, 1928.
In view of the aforesaid quotation from the complainants' letter of August 2, 1927, the mere fact that time for the performance of the contract was extended by complainants from August 10, 1927, to August 25, 1927, does not imply that time for the closing of the title on the latter date was not to be regarded as of the essence of the contract, but, on the contrary, coupled with the aforesaid quotation from complainants' letter of August 13, 1927, must reasonably be regarded as unmistakably manifesting to the defendant that the time fixed in the latter letter was to be regarded as of the essence of the contract.
I will advise a decree for the complainants.