Wellmore Builders, Inc. v. Wannier

• Decision Date: 07 April 1958
• Docket Number: No. A--656,A--656
• Citation: 140 A.2d 422,49 N.J.Super. 456
• Parties: WELLMORE BUILDERS, Inc., a corporation of New Jersey, Plaintiff-Appellant, v. Gregory H. WANNIER, Carol G. Wannier, his wife; Alexander Caplan and J. Lewis Fiacre, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 456

49 N.J.Super. 456

140 A.2d 422

WELLMORE BUILDERS, Inc., a corporation of New JerseyPlaintiff-Appellant, v.Gregory H. WANNIER, Carol G. Wannier, his wife; Alexander Caplan and J. Lewis Fiacre, Defendants-Respondents.

No. A--656.

Superior Court of New Jersey Appellate Division.

Argued Dec. 16, 1957.

Decided April 7, 1958.

Harry Weltchek, Elizabeth, for appellant(Weltchek & Weltchek, Elizabeth, attorneys).

Homer R. Zink, Newark, for respondents Wannier (Jones, Voigt & Fink, attorneys).

Addison C. Ely, Westfield, for respondents Caplan and Fiacre (Snevily & Ely, Westfield, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

PlaintiffWellmore Builders, Inc. appeals from a summary judgment entered in the Chancery Division in favor of all defendants and dismissing its action for injunctive relief and specific performance.

On March 9, 1946 the predecessors in title of Wellmore and defendants Wannier entered into an agreement imposing certain obligations upon the parties thereto and their assignees.Under that agreement plaintiff's predecessor was authorized to construct Woodside Road within the boundaries of the property of the Wanniers' predecessor and to obtain reimbursement for the cost thereof from the proceeds of the latter's sale of nine lots serviced by the road.Thereafter plaintiff and the Wanniers, as successors in title, being desirous of altering the rights and duties imposed by the prior agreement and settling their mutual obligations, entered into a new agreement, dated May 11, 1955, which in summary provided, among other things, that

(1)Plaintiff was to construct Woodside Road through the Wannier property in such a manner that it would be accepted by the municipality as a public street, and also install the necessary storm, water and sanitary sewers.

(2)The parties were to execute an instrument abrogating the agreement of March 9, 1946.

(3) The Wanniers were to convey to plaintiff certain property owned by them on the west side of Woodside Road, together with their right to the conveyance of a 30-foot strip of land adjacent thereto, and obtain a release from an existing mortgage.

(4) The Wanniers were to execute an instrument granting plaintiff the privilege, for a period of five years, of purchasing from them either or both of their two lots on the east side of Woodside Road (designated on a sketch plot as lots A and B, B being the southernmost) if they decided to sell either or both during that period.The purchase price was fixed at $4,000 for each lot.The Wanniers were to give written notice to plaintiff of their intention to sell, plaintiff to have 45 days within which to exercise its option.If plaintiff failed to do so, defendants could sell either or both of the lots without restriction.

In furtherance of the new agreement, Wellmore and the Wanniers executed the following on June 16, 1955: (1) an agreement abrogating the agreement entered by their predecessors in title on March 9, 1946; and (2) a so-called 'option agreement' containing the same terms as set out in the agreement of May 11 preceding, with the added provision that the parties would have the right to specific enforcement of the agreement.The option contract makes no mention of consideration or reference to the May 11, 1955 agreement.

Plaintiff thereafter constructed Woodside Road fronting on defendant Wanniers' property and installed the utilities in fulfillment of its obligations under its agreement with them.The Wanniers, in turn, conveyed to plaintiff the property to the west of that road.

On March 13, 1957 the Wanniers entered into a written agreement with defendants Caplan and Fiacre to grant them an easement to install and maintain a sanitary sewer and storm sewer in the most southerly 15-foot strip of lot B.This easement obviated the necessity of Caplan and Fiacre building a sewage pumping station for their proposed land development to the east, and it was obtained at the particular request of the Planning Board of the City of Summit.The easement grant followed on April 6, 1957, the consideration being $5,000.The grant was 'expressly made subject to a certain option entered into between the Grantors and Wellmore Builders, Inc.,' and the Wanniers warranted that they would not sell or convey the lot in question (B) until after the expiration of the option agreement.Caplan and Fiacre have as yet done no work on their proposed sewers, but await the resolution of this action.

Upon learning of the easement agreement, plaintiff treated it as an election by the Wanniers to sell, and on April 23, 1957 notified them of its election to exercise its option to buy.The Wanniers refused to make any conveyance, and plaintiff thereupon instituted this action against them, Caplan and Fiacre, to (1) enjoin delivery and acceptance of the easement, (2) enjoin Caplan and Fiacre from engaging in any excavation or construction work upon the property, (3) declare any such easement null and void, (4) enjoin the Wanniers from executing any further deeds or agreements purporting to grant or transfer any interest in the lands affected by the option agreement, and (5) for specific performance of the option agreement by ordering the Wanniers to convey both lots to plaintiff.On the basis of its complaint and affidavit, plaintiff obtained a temporary restraint which, however, was vacated on the return of the order to show cause.

After the close of the pleadings and the filing of affidavits there were cross-motions for summary judgment.Plaintiff specifically sought judgment ordering theWanniers to convey lot B to it, enjoining them from executing any further deeds or agreements purporting to grant or transfer an easement or other interest in lot A, and setting aside and declaring null and void the agreement purporting to grant Caplan and Fiacre any rights in and to lots A and B.The Chancery Division judge granted defendants' motion and dismissed the complaint, expressing doubt as to whether there was any consideration supporting plaintiff's claimed option right, and this on the authority of Friedman v. Tappan Development Corp., 39 N.J.Super. 103, 120 A.2d 633(App.Div.1956), affirmed22 N.J. 523, 126 A.2d 646(1956).The trial court went on to say that assuming the agreement of June 16, 1955 was supported by a consideration, Wanniers' grant of the easement and their covenant not to sell the lots during the remainder of the five-year period did not amount to a breach of their agreement with Wellmore, and therefore plaintiff was not entitled to the specific performance and injunctive relief it sought.The court also concluded that the grant of the easement was not a sale within the meaning of the so-called option agreement.

On this appeal plaintiff asserts that its agreement with the Wanniers was supported by valuable consideration; that the Wanniers in effect granted it an option; that their grant of an easement to Caplan and Fiacre constituted an encumbrance of the lands covered by the option; and finally, that plaintiff was entitled to exercise its option at this time.Based upon this argument, plaintiff submits that it is presently entitled to a judgment of specific performance or, at the very least, that the easement should be set aside and the Wanniers restrained from making further conveyances and agreements except in strict conformance with the option agreement.On their part, defendants contend that the so-called option agreement was not an option but merely a right in plaintiff of first refusal at a fixed price, provided the Wanniers decided to sell; that there was no consideration supporting the privilege of first refusal granted plaintiff; that the grant of the easement to Caplan and Fiacre was not a sale within the meaning of the Wellmore-Wannier agreement and did not encumber the property; and that the Wanniers could, consistently with the existence of the privilege of first refusal given Wellmore, bind themselves by contract with Caplan and Fiacre not to sell the property during the remainder of the five-year period.

Defendants rely on Friedman v. Tappan Development Corp., above, to support the view that there was a lack of consideration for the May 11, 1955 agreement between plaintiff and the Wanniers--a lack of mutuality of obligation, a term which receives extended discussion in that case, 22 N.J. at page 532 et seq., 126 A.2d at page 650.We do not find Friedman applicable for the purpose cited by defendants.There is ample consideration to support plaintiff's claimed 'option.'

Although plaintiff sues to enforce the so-called option agreement we must actually consider three agreements to arrive at a proper understanding of the arrangement between it and the Wanniers: the major agreement of May 11, 1955 and the supplementing abrogation and 'option' agreements of June 16, 1955.It is now settled that two or more writings which are all parts of one transaction relating to the same subject matter, are to be read and interpreted as one instrument, whether or not they refer to each other.Lawrence v. Tandy & Allen, Inc., 14 N.J. 1, 6, 100 A.2d 891(1953);Friendly Consumer Discount Co. v. Foell, 39 N.J.Super. 410, 415, 121 A.2d 434(App.Div.1956);3 Corbin on Contracts (1951), §§ 549, 583, pp. 100, 272;3 Williston on Contracts (rev. ed. 1936), §§ 628, 840, pp. 1801, 2354.The instruments need not be executed on the same day nor each contain a separate mention of consideration.The consideration for the option here claimed by plaintiff is found in the May 11, 1955 agreement.In return for Wellmore constructing the road at its own expense and installing utilities, defendants Wannier were to do certain enumerated things: to convey their lands to the west of Woodside Road, to execute a contract abrogating the March 9, 1946 agreement of the predecessors in title, and to execute the 'option agreement' here in question.

Plain...