Schwartz v. Hoffman Found. & Holding Corp...
| Citation | 51 A.2d 240 |
| Decision Date | 18 February 1947 |
| Docket Number | 147/230. |
| Parties | SCHWARTZ et al. v. HOFFMAN FOUNDATION & HOLDING CORPORATION. |
| Court | New Jersey Court of Chancery |
Suit for specific performance by Fred Schwartz and Herman Entin against Hoffman Foundation & Holding Corporation, a corporation of New Jersey.
Decree for specific performance.
1. A suit for specific performance may be maintained on an option in a lease to buy or sell lands and premises.
2. Where an option to purchase lands and premises fails to indicate the type of deed transferring them, the law will imply that a conveyance in fee is to be made by a bargain and sale deed, free and clear of encumbrances.
3. Our courts adhere to the principle that impossibility of performance offers no relief from the performance of contractual obligations, and unforeseen contingencies are no excuses for the failure to perform.
4. Time is not deemed to be of the essence of a contract unless the parties expressly agree to it, or unless it follows from the nature and circumstances of the transaction.
Gurtman & Schomer, of Passaic, for complainants.
Joseph C. Glavin, of Jersey City, for defendant.
EGAN, Vice Chancellor.
The defendant owner of the premises known by the street number 751 Bergen Avenue, Jersey City, New Jersey, leased it to the complainants on or about July 31, 1945, for a period of five years. The lease, among other things, provided:
Ex. C-1.
The defendant by letter dated April 15, 1946, notified the complainants that it had received an offer of $32,000 for the property and that if they desired to exercise the option aforesaid, then to submit a deposit and arrange for a contract within five days. Ex. C-2. In response to the notice the complainant Entin on April 19, 1946, called at the office of Mr. Joseph Glavin, the defendant's attorney, and offered the sum of $500 as a deposit on account of the purchase price of the premises. Glavin told him that he was not authorized to accept a deposit on behalf of the defendant.
Glavin then telephoned to Hoffman, the treasurer and person actually in charge of the management and conduct of the affairs of defendant corporation, and told him that Entin was at his office with a deposit of $500. Hoffman insisted upon a deposit of $2,000. Later that same day, the defendant received the following communication (Ex. C-3) from the complainants:
‘Pursuant to our lease dated July 31, 1945, we refer to paragraph 33, we are taking up the option for $32,000.00 to purchase building located at 751 Bergen Avenue, Jersey City, N. J.
‘Enclosed find check for Five Hundred Dollars as a deposit subject to Sales contract to be prepared.’
Glavin then prepared a contract (Ex. C-6) and submitted it to Mr. Morris Harris, an attorney who then represented the complainants. It, among other things, provided that the deed to be delivered thereunder would contain the following provisions:
‘This contract is made, and the deed to be delivered pursuant thereto shall be, subject to the following:
‘(1) Such state of facts as an accurate survey may disclose, provided the same do not render the title unmarketable.
‘(2) Restrictions and easements, if any.
‘(3) Lien and effect, if any, of the assessment for municipal improvements which are prospective or inchoate, and are not confirmed, and not due and payable on the date of closing of title.
‘(4) Operation and effect of Federal, State and Municipal Laws and Ordinances relating to buildings, their construction and usage.
‘(5) Rights of tenants in possession.’
Harris returned the proposed contract (Ex. C-6) to Glavin, with a letter (Ex. C-13), stating that
The parties named May 22, 1946, as the date when the contract would be executed at Glavin's office, 921 Bergen Avenue, Jersey City, N. J. They then met at Glavin's office. The defendant inserted in the proposed contract the following clause: ‘(6) O.P.A. violations, if any.’
The complainants objected to the insertion of the clause. The defendant would not agree to its removal. No contract resulted.
Two days later the defendant received a letter from the law firm of Messrs. Gurtman and Schomer, who succeeded Harris as attorney for the complainants, which reads as follows:
‘This will supplement the notice heretofore given by Messrs. Herman S. Entin and Fred Schwartz on April 19 for the purchase of the above stated property pursuant to the exercise of the option contained in their lease with you.
(Ex. C-7).
The defendant, on May 31, 1946, returned the $500 deposit to the complainants, together with a letter informing them that they had waived the provisions of the option. Ex. C-8.
The complainants' counsel replied thereto by letter of June 3, 1946 (Ex. C-9) stating:
The defendant's attorney on June 6, 1946, advised complainants' attorneys by letter, that the defendant had set Monday, June 10th at 11 o'clock in the forenoon, at his office, as the time and place when and where it would deliver a deed to complainants on the payment of the consideration, and that the proposed deed would contain all of the provisions set out in the contract offered to them on May 22, 1946. The letter stated that time would be of the essence. Ex. C-10.
Complainants, with their attorney, Aaron Z. Schomer, a member of the aforesaid law firm, appeared at the place designated on June 10, 1946. There present, in addition to the last named, were the defendant's attorney, Mr. Glavin, and Mr. Hoffman. The deed as outlined in the proposed contract aforesaid, duly executed by the officers of the defendant corporation, was tendered, with an affidavit of title (Ex. D-2), and a resolution of the defendant's board of directors authorizing the sale (Ex. D-3).
The complainants objected to the reservations provided in the deed and refused to accept it. The parties argued the points of difference. Finally, Hoffman, on behalf of the corporation, agreed to delete five of the objectionable provisions; but he refused to remove the first provision providing: ‘Subject to such state of facts as an accurate survey may disclose, provided the same do not render the title unmarketable.’
Complainants refused to accept...
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Keppler v. Terhune, A--503
...88 N.J.Eq. 476, 103 A. 25 (Ch.1918). Upon the exercise of the option they become enforceable. See Schwartz v. Hoffman Foundation, etc., Corp., 139 N.J.Eq. 349, 51 A.2d 240 (Ch.1947). Here plaintiff exercised the option. He notified defendant, through counsel, of his intention to do so and f......
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...it must be as a result of an implication consistent with the nature and circumstances of the transaction. Schwartz v. Hoffman Foundation, etc., Corp., 139 N.J.Eq. 349, 51 A.2d 240. In the agreement as originally prepared there appears a printed clause which provides, in part, as follows: ‘t......
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...236, 197 A. 6; Norton v. Miller, 138 N.J.Eq. 235, 47 A.2d 738, affirmed 139 N.J.Eq. 310, 50 A.2d 895; Schwartz v. Hoffman Foundation & Holding Corp., 139 N.J.Eq. 349, 51 A.2d 240. The law of these cases is not applicable here. There were involved in each of the cases suits in equity for spe......
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...must be as a result of an implication consistent with the nature and circumstances of the transaction. See Schwartz v. Hoffman Foundation, &c. Corp., 139 N.J.Eq. 349, 51 A.2d 240. In order to determine this question it is, of course, necessary to examine the conduct of the parties in connec......