Norton v. Miller, 147/63.

• Decision Date: 11 June 1946
• Docket Number: 147/63.
• Citation: 47 A.2d 738
• Parties: NORTON v. MILLER et al.
• Court: New Jersey Court of Chancery

47 A.2d 738

NORTON

v.MILLER et al.

147/63.

Court of Chancery of New Jersey.

June 11, 1946.

Suit by Ruth Auman Norton against Mary M. Miller and Hugh R. Miller for specific performance of a contract to sell to complainant certain land.

Decree for complainant.

Syllabus by the Court.

1. Where parties have expressly stipulated that the time for the performance of their mutual undertaking shall be an intrinsic, essential, and vital term of the compact, a lack of punctuality is ordinarily fatal to the contractual rights of the delinquent party.

2. A provision declaring time to be of the essence of a contract is not in all circumstances conclusively operative. Its initial effectiveness may be subsequently waived and the intention to annul it may be disclosed by the conduct of the parties.

3. In the absence of fraud or bad faith, the circumstance that the value of property which is the subject of a contract has increased or diminished since the contract was executed will not ordinarily justify a court of equity in refusing to grant a decree of specific performance.

4. An agent for a vendor, on the passing of title to lands under a written contract, has no implied authority to extend the time therefor when the contract by its terms makes time of the essence thereof.

5. The acknowledgment by a married woman of a contract to sell land is no longer essential to the enforcement of the contract in equity.

Berry & Whitson and Franklin H. Berry, all of Toms River, for complainant.

Francis Tanner, of Barnegat, for defendants.

JAYNE, Vice Chancellor.

The decision of this cause centers in the solution of a sharp and critical question of fact.

The transaction from which the present litigation is derived was instituted by an agreement dated September 5, 1945, in which the defendants promised to convey and the complainant contracted to purchase on December 1, 1945, for the price of $8,850 certain premises situate in the Borough of Surf City. The agreement embraces a stipulation that the time designated for the consummation of the sale ‘is of the essence’ of the bargain. The settlement was not accomplished on December 1, 1945.

It must be at once acknowledged that where, as here, the parties have expressly stipulated that the time for the performance of their mutual undertaking shall be an intrinsic, essential and vital term of the compact, a lack of punctuality is ordinarily fatal to the contractual rights of the delinquent party. There is perhaps no reported decision more illustrative of the strict adherence to that principle than that rendered by Vice Chancellor Leaming and approved by the Court of Errors and Appeals in Doctorman v. Schroeder, 92 N.J.Eq. 676, 114 A. 810. Vide, Collins v. Delaney Co., 71 N.J.Eq. 320, 64 A. 107, and cases therein cited.

It is equally incontrovertible that such a provision declaring time to be of the essence is not in all circumstances conclusively operative. Its initial effectiveness may be subsequently waived and the intention to annul it may be disclosed by the conduct of the parties. Kerney v. Johnson, 104 N.J.Eq. 244, 144 A. 808; Isbill v. Duffy, 110 N.J.Eq. 429, 160 A. 326; Bommelyn v. Moss, 123 N.J.Eq. 236, 197 A. 6.

Conceding that those are the applicable principles of law, a concentration of the evidence in the present cause converges, as I view it, into a single specific, yet problematical, issue of fact. The complainant prays for a decree obliging the defendants to perform the contract of sale, asserting that the stipulation relative to the time of performance was abandoned. The defendants resist upon the averment that the obligation of the complainant to complete the agreement was not fulfilled on the date specified and that the complainant consequently forfeited her right to enforce the contract.

I must rely upon the photography of the material facts as reproduced by the evidence. The property had been ‘listed’ with Richard A. Zachariae, a local realtor, through whose agency the sale was negotiated. There is no doubt that the defendants as vendors contemplated and intended that Mr. Zachariae would represent them in all the anticipatory matters appertaining to the completion of the conveyance. Mr. Miller was then in military service, and Mrs. Miller was residing in Wilmington, Delaware.

The agreement bears date September 5, 1945, but it was not executed by the defendants and returned to Mr. Zachariae until September 29, 1945. I pause to state that Mrs. Miller acted for her husband in pursuance of a power of attorney. Her authority is not now impugned. On September 30, 1945, the complainant executed a written application addressed to Beach Building and Loan Association requesting a mortgage loan of $5,000. On October 4, 1945, the desired loan was granted. Tersely stated, it was the inability of the Title Company to complete the examination of the title and present its report that solely occasioned the failure to consummate the sale on December 1, 1945.

On November 27, 1945, Mrs. Miller was in communication with Mr. Zachariae by telephone, and he acquainted her with all the circumstances and suggested that the settlement be postponed until the receipt of the report of the Title Company. Mr. Zachariae testified that Mrs. Miller expressly assented to the suspension. Mrs. Miller acknowledges that Mr. Zachariae on that occasion informed her of the underlying reasons for the delay, but she denies that she voiced any acquiescence in the adjournment of the sale. Certainly she did not then exhibit any objection or insist that the stipulation of the contract be strictly observed and fulfilled.

Mrs. Miller did not appear at the broker's office at Ship Bottom on December 1, 1945. The complainant, although she had been likewise informed of the situation by Mr. Zachariae, nevertheless journeyed from Philadelphia to the office at Ship Bottom on December 1, 1945, and informed Mr. Zachariae that despite the delay in completing the mortgage loan, she was prepared immediately to pay the full balance of the purchase price amounting to $8,350. A so-called ‘down payment’ of $500 had been previously made. Mr. Zachariae assured her that such a course was unnecessary, and that Mrs. Miller had agreed to the postponement. She reposed confidence in his statement. However, to dispel any alarm Mrs. Miller might experience concerning her ultimate receipt of the purchase price, the complainant insisted that Mr. Zachariae accept $3,350. He did so and immediately informed Mrs. Miller of that payment. It was not until about January 10, 1946, that the solicitors of the Building and Loan Association received a favorable report from the...