Claron v. Thommessen

Decision Date20 October 1924
Docket NumberNo. 64.,64.
Citation126 A. 308
PartiesCLARON v. THOMMESSEN.
CourtNew Jersey Supreme Court

Appeal from Court of Chancery.

Action by Joseph J. Claron against Fred Thommessen, wherein defendant counter-claimed for specific performance. From decree dismissing complainant's bill and decree requiring specific performance, complainant appeals. Decree of dismissal affirmed, and decree of specific performance for defendant reversed.

See, also, 94 N. J. Eq. 530, 122 Atl. 435.

Bourgeois & Coulomb, of Atlantic City, for appellant.

John C. Reed, of Atlantic City, and Robert H. McCarter, of Newark, for respondent.

LLOYD, J. Joseph J. Claron, complainant in the court below, was the owner of property in Atlantic City known as the Albany Arms Hotel, and in September, 1921, entered into an agreement with Fred Thommessen, the defendant below, for the sale of the property at the price of $27,000, Claron giving to Thommessen a receipt as follows:

"Agreement—J. J. Claron and Fred Thommessen.

"Sept. 4, 1921.

"Received of Fred Thommessen one thousand ($1,000.00) to bind the bargain of the Albany Arms Hotel and 183 ft. on Albany avenue by 105 ft. depth. Place is to be turned over complete with the exception of personal belongings approximately $300.00 in value. Sales price twenty-seven thousand dollars ($27,000.00); $10,00.00 cash, mortgage of $17,000.00 for three years. Commission to Foss ($500.00). Agreement to be drawn in the South Jersey Title Company, September 6, 11 p. m., and all adjustments to be made at date of settlement. Possession to be given the 17th or before.

"J. J. Claron."

The agreement was never carried out by the parties. It was followed however by a sequence of events in which each party participated. It fairly appears from the evidence that the agreement was inadvertently dated September 4th; the real date was September 6th. There arose almost immediately some uncertainty between the parties as to whether the agreement would be carried out, due as claimed by Claron to Thommessen's inability to finance the sale and as claimed by Thommessen to Claron's refusal to deliver a quantity of intoxicants, which he insisted were part of the bargain.

September 16, 1921, Claron served upon Thommessen this notice:

"Take notice that I insist upon your performing the terms of your agreement for the purchase of the Albany Arms, and that, if you intend to demand possession thereof on September 17, 1921, as per our agreement, settlement must be made not later than Friday, September 16, 1921, at 11 o'clock in the forenoon, at the South Jersey Title & Finance Company's office.

"Dated September 15, 1921.

"J. J. Claron."

Matters were then permitted to remain in abeyance and nothing was done by either party in furtherance of the agreement. On January 31, 1922, Claron entered into a contract to sell a portion of the property to other persons. On February 14, 1922, Thommessen caused the receipt given to him by Claron to be recorded in the clerk's office of Atlantic county. On March 7, 1922, Thommessen commenced an action in the Supreme Court to recover the $1,000 deposit money paid to Claron on the signing of the above receipt, alleging that a part of the consideration of the purchase price were the abovementioned intoxicating liquors and that these liquors Claron had refused to deliver. This action was subsequently discontinued.

On the 18th of March, 1922, Claron filed a bill in the Court of Chancery under an act, entitled "An act to compel the determination of claims to real estate in certain causes, and to quiet title to the same," to have the cloud upon his title occasioned by the filing of the receipt of September 6th removed. This suit proceeded to a final decree, and the bill was dismissed on the ground that the complainant was not within the purview of the act. This decree was affirmed by the Court of Errors and Appeals. 94 N. J. Eq. 530, 122 Atl. 435. On April 6, 1923, the present bill was filed...

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16 cases
  • Ajamian v. Schlanger
    • United States
    • New Jersey Superior Court — Appellate Division
    • August 7, 1953
    ...sec. 32, pp. 152--153. Cf. Heller v. Elliot, 44 N.J.L. 467 (Sup.Ct.1882), affirmed 45 N.J.L. 564 (E. & A.1883); Claron v. Thommessen, 96 N.J.Eq. 650, 126 A. 308 (E. & A.1924); Rose v. Buckley, 2 N.J.Misc. 1045 (Ch.1924), affirmed 98 N.J.Eq. 685, 130 A. 527 (E. & A.1925); Maturi v. Fay, 98 N......
  • Ajamian v. Schlanger
    • United States
    • New Jersey Supreme Court
    • February 15, 1954
    ...81, 53 A.2d 362, 363 (Ch.1947); and see Micheloni v. Troy Hills, Inc., 121 N.J.Eq. 117, 187 A. 168 (E. & A.1936); Claron v. Thommessen, 96 N.J.Eq. 650, 126 A. 308 (E. & A.1924); cf. Titus v. Phillips, 18 N.J.Eq. 541 (E. & A.1867). It is plain that that rule cannot and does not obtain under ......
  • Levy v. Mass. Acc. Co.
    • United States
    • New Jersey Court of Chancery
    • November 10, 1938
    ...thereof. Blum Bldg. Co. v. Ingersoll, 99 N.J.Eq. 563, at page 568, 134 A. 176, affirmed, 101 N.J.Eq. 291, 137 A. 916; Claron v. Thommessen, 96 N.J.Eq. 650, 126 A. 308; Maturi v. Fay, 98 N.J.Eq. 377, 129 A. 185; Rose v. Buckley, 98 N.J.Eq. 685, 130 A. Perhaps it should here be said that it i......
  • Dial Press, Inc. v. Phillips
    • United States
    • New Jersey Superior Court — Appellate Division
    • December 15, 1952
    ...(E. & A.1925); Rose v. Buckley, 2 N.J.Misc. 1045 (Ch.1924), affirmed 98 N.J.Eq. 685, 130 A. 527 (E. & A.1925); Claron v. Thommessen, 96 N.J.Eq. 650, 126 A. 308 (E. & A.1924); Heller v. Elliot, 44 N.J.L. 467 (Sup.Ct.1882), affirmed 45 N.J.L. 564 (E. & A. 1883). While these cases employ gener......
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