Melcer v. Zuck

• Decision Date: 05 July 1968
• Docket Number: No. A--1259,A--1259
• Citation: 101 N.J.Super. 577,245 A.2d 61
• Parties: Chaim MELCER, Plaintiff-Respondent, v. Benjamin ZUCK and Rose Zuck, Defendants-Appellants, and R.G.B. Construction Co., Inc., a corporation of the State of New Jersey, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 577

101 N.J.Super. 577

245 A.2d 61

Chaim MELCER, Plaintiff-Respondent, v. Benjamin ZUCK and Rose Zuck, Defendants-Appellants and R.G.B. Construction Co., Inc., a corporation of the State of

New Jersey, Defendant.

No. A--1259.

Superior Court of New Jersey Appellate Division.

Argued Feb. 13, 1968.

Decided July 5, 1968.

Robert B. Silverman, Lakewood, for appellants (Julius Braun, Lakewood, attorney).

William G. Bassler, Redbank, for respondent (Parsons, Canzona, Blair & Warren, Redbank, attorneys, Thomas Smith, Jr., Redbank, of counsel).

Before Judges GAULKIN, LEWIS and KOLOVSKY.

The opinion of the court was delivered by

KOLOVSKY, J.A.D.

As amended, the complaint filed herein by plaintiff, the purchaser named in a contract for sale of lands dated March 13, 1965, sought specific performance with an abatement by reason of the vendors' 'inability to provide a means of ingress and egress to' the premises described in the contract, or in the alternative, damages for breach of contract. Joined as parties defendants were the sellers, Mr. and Mrs. Zuck and R.G.B. Construction Co., Inc. (R.G.B.) to which the Zucks had conveyed the property on January 22, 1966, taking back as part of the purchase price a purchase money bond and mortgage of $20,000.

After a plenary trial the trial court ruled--and plaintiff does not challenge the ruling--that R.G.B. was a purchaser for value and as such entitled under R.S. 46:21--3, N.J.S.A. to hold the property free from any claim of plaintiff under his recorded contract of sale.

However, the trial court further ruled that defendants Zuck had breached their contract so that plaintiff was entitled to the alternative relief prayed, damages from Mr. and Mrs. Zuck for the 'loss of the bargain, * * * the difference between $28,750, the contract price as abated, and $40,230, the sales price to R.G.B. Construction Co. Inc.' (95 N.J.Super., at p. 260, 230 A.2d, at p. 543). Judgment was entered for the difference, $11,480, with interest from October 22, 1965. The Zucks appeal.

We reverse. We are satisfied from our review of the record that plaintiff did not establish a claim for relief either under the terms of the written contract of March 13, 1965 or by reason of what occurred thereafter.

We turn first to the contract of March 13, 1965, the basic instrument dealing with the rights and obligations of the parties, their 'single and final written memorial,' 30 Am.Jur.2d, Evidence, § 1016, p. 152. We are therefore not concerned with the interpretation of, or indeed the enforceability of, a prior 'offer to purchase' on a printed form of 'Monroe Bowne, real estate broker,' signed by plaintiff and accepted by Zuck with a provision for a 10% Brokerage commission. We note, however, since similar provisions were incorporated in the March 13 contract, that the 'offer to purchase' provided that 'access from main road to property guaranteed. Seller guarantees not less than 295 acres. If survey shall disclose less than 295 acres, adjustment will be made at $100.00 per acre.'

The formal contract of March 13, 1965 had been insisted on by Zuck. It was prepared by plaintiff's attorney. The description of the property was copied from a title report of Lawyers Title Insurance Company which Zuck had obtained prior to his acquisition of the property in 1953. That title report listed the same four exceptions (quoted at 95 N.J.Super., at p. 255, 230 A.2d 538) as were set forth in the title report dated April 12, 1965, later obtained by the purchaser's attorney from the same title company. As the trial court observed, the first three exceptions relating to heirs and dower rights were thereafter deleted on submission of affidavit proofs; the fourth, of particular significance to the present litigation, was not. It read:

'Rights of ingress and egress to a public road will not be insured.'

The contract of March 13, 1965 provided for the sale by the Zucks to plaintiff of a 298.54-acre tract in Jackson Township on or before April 20, 1965 for $29,750--$2975 by deposit, the balance $26,775 at title closing, with provision for a reduction in the price 'at the rate of $100 per acre or fraction thereof' if an accurate survey disclosed that the premises contained less than 295 acres. The premises were described by metes and bounds and as lots 31 to 40, inclusive (with no indication of the map on which the property was designated by those lot numbers), subject, Inter alia, to the following:

'Subject to the rights of the public, if any, in and to any public roads running in, through or over the premises hereinbefore described.

Subject to rights, public and private, in roads, streets or avenues abutting the hereinabove described premises.

Subject to any and all grants to public utility companies pertaining to the hereinabove described premises.'

Pertinent to the issues presented in this litigation are the following additional provisions of the agreement:

'Sellers guarantee ingress and egress from the main road to the premises in question.

In the event title to the above described premises is found to be unmarketable upon an examination thereof, the only obligation of the seller shall be the return of the deposit and all monies of the purchaser paid unto the seller; providing, however, that the seller will reimburse the purchaser for legal expenses incurred in the examination of the title to the hereinabove described premises which, however, shall not exceed the sum of $150.00; and upon receipt of the same by the purchaser, the rights and liabilities of the parties hereto, their respective heirs, executors, administrators or assigns, shall cease and terminate and this contract then to become null and void.

As an inducement to the seller to enter into this contract, the purchaser represents to the seller that the purchaser had made an inspection of said premises and is familiar with the condition thereof and that the seller had made no representation with respect thereto other than is specifically set forth in this contract.'

At the outset it is essential to determine exactly what the contract obligated the seller to convey--what was the estate the purchaser had bargained for. The 298-acre tract does not front on any state, county or municipal road. The only reference to rights of ingress and egress thereto appears in the statement that the 'sellers guarantee ingress and egress from the main road to the premises in question.' However, it is clear that the contract did not contemplate that the purchaser was merely to have the benefit of the seller's warranty that ingress and egress would continue to be available. Cf. Jersey Estates Corp. v. Weintraub, 140 N.J.Eq. 216, 217, 53 A.2d 817 (Ch.1947).

We agree with the trial court and with plaintiff's contention that the contract obligated defendants to convey not only the 298-acre tract but also 'legally recognizable' right-of-way easements furnishing ingress and egress from the main road to the tract.

At the trial Zuck offered proofs as to seven roads and rights of way allegedly available, some of which were being used for ingress to and egress from the 298-acre tract. After analyzing those proofs the trial court concluded that 'the Zucks could not honor their guarantee of ingress and egress from a main road to their premises' (95 N.J.Super., at p. 258, 230 A.2d, at p. 542), this based on the court's ruling that 'there was no proof that any easement had been established over any of the properties through which these ways went,' either by prescription or dedication (95 N.J.Super., at pp. 257--258, 230 A.2d at p. 541).

Although Zuck vigorously challenges the correctness of the trial court's analysis and findings with respect to the legal existence of the rights of way, we find it unnecessary to deal with that challenge for our disposition of the case. Assuming the correctness of the court's ruling, it constitutes a determination that the Zucks were unable to convey good or marketable title to the estate, which included the rights of way, they had agreed to convey. Lounsbery v. Locander, 25 N.J.Eq. 554, 556 (E. & A.1874); 4 American Law of Property § 18.7, p. 673 (1952); Cleveland v. Bergen Bldg. & Imp. Co., 55 A. 117, 123 (N.J.Ch.1903); Bassolino v. lacovelli, 275 App.Div. 972, 90 N.Y.S.2d 526 (App.Div.1949); see, also, Moran v. Borrello, v. N.J.Misc. 344, 132 A. 510, 511 (Sup.Ct.1926).

Unless plaintiff acquired additional rights by reason of what occurred after the execution of the contract of March 13, 1965, that determination of lack of marketable title brings into operation the contract provision limiting the sellers' obligation in the event title is found to be unmarketable to the return of the deposit and search fees not exceeding $150. It is settled that such a provision for limitation of liability is valid and enforceable. Bertrand v. Jones, 58 N.J.Super. 273, 287, 156 A.2d 161 (App.Div.1959), certification denied 31 N.J. 553, 158 A.2d 452 (1960); Guaclides v. Kruse, 67 N.J.Super. 348, 364, 170 A.2d 488 (App.Div.1961), certification denied 36 N.J. 32, 174 A.2d 658 (1961); 5 Williston, Contracts (3d ed. 1961), § 781A; 5 Corbin, Contracts, § 1068 (1951); cf. 6 Powell, Real Property, 928, at p. 339 (1968).

We have not overlooked the statement in the trial court's opinion that 'it is admitted that the title was not unmarketable because of the question as to ingress and egress.' (95 N.J.Super., at p. 257, 230 A.2d at p. 541). Altogether, apart from the fact that such an admission or stipulation as to what the law is is not binding upon the court, 50 Am.Jur., Stipulations § 5, p. 607; Bankers' Trust Co. of N.Y. v. Lobdell, 116 N.J.Eq. 363, 364, 173 A. 918 (Ch.1934), the record does not support the statement. That was not the position taken by plaintiff in his pleadings, in the pretrial orders, or indeed on this appeal. We find nothing persuasive in the opinion to the contrary expressed at the trial by the attorney who represented plaintiff in the...