105 N.J. Eq. 389 | N.J. Ct. of Ch. | 1929
This bill is filed by the vendor against the vendee for the specific performance of a contract for the sale of land. In the contract of sale the property is described as located in the city of Long Branch "fronting on the westerly side of Ocean avenue and the northerly side of New Court, which is laid down and designated as plot No. thirty-two (32), block sixty-three (63), section two (2), as shown on the map of the city of Long Branch, New Jersey, adopted by the city council August 6th, 1906, W.S. Seaman, City Engineer." The agreement provides for a conveyance by warranty deed free from all encumbrances. The contract is dated August 12th, 1925, but, it is admitted, was not executed by the complainant until August 17th, 1925, and by the defendant Kadrey some weeks later. October 15th was the date fixed for settlement. The defenses to this suit are (1) encroachment of the building over the street line; (2) the existence of a party wall not set forth in the contract; (3) that the property has a frontage on Ocean avenue of only seventy-eight feet five inches whereas the contract calls for eighty-five feet; (4) that the property is subject to certain restrictive covenants and (5) that the property had been sold for taxes. *391
The second defense was not urged at the hearing nor in the arguments of counsel and there was no evidence supporting it; the fifth defense was abandoned after complainant produced at the trial papers indicating that the property had been redeemed from the tax sales. The only defenses argued are the first, third and fourth. These defenses will be considered in their order.
I think it is clear that no misrepresentations were made with respect to the frontage of this property. It is true that the map which is referred to in the contract of sale indicates that the property has a frontage of eighty-five feet on Ocean avenue, but the contract itself does not specify the number of feet frontage and the evidence indicates that the exact frontage of the property was not a material feature of the contract. The first negotiations between the parties respecting this property were on the evening of August 12th, 1925, when the defendant paid the complainant a deposit of $1,000 on account of the purchase price and in the receipt which was given by the complainant at that time the property is described as "the three apartments Nos. 646-648-650 Ocean avenue, West End, New Jersey." When that receipt was given, Mr. Brockhurst, of the complainant company, asked the defendant Kadrey to inspect the property, but this he declined to do, saying that he was perfectly familiar with it, as he undoubtedly was. But two days later, namely, August 14th, 1925, the defendant Kadrey made a contract of resale to third parties and in that contract described the property as having a frontage of "about eighty-one feet," a clear indication that he knew at that time that the plot did not have a frontage of eighty-five feet and that he was not expecting to receive a conveyance of that much frontage. He claims, however, that after making the contract of resale, he was informed that there was a shortage in the frontage on Ocean avenue and that he then took the matter up with Mr. Brockhurst, who reassured him and told him that the property had *394
a frontage of eighty-five feet. As a matter of fact, what Mr. Brockhurst said on this occasion was that he thought there was eighty-five feet because the map showed it. However, what the defendant Kadrey was buying was the physical property which he saw and was familiar with regardless of the exact frontage. It cannot be denied that on August 14th, 1925, he thought it had less than eighty-five feet frontage and when his vendees called his attention to the fact that the frontage was less than eighty-one feet, he did not rescind the contract, but on the contrary dealt with the property in such fashion that he must be held to have waived this objection if it was material. As was said in Van Blarcom v. Hopkins,
The evidence as to a waiver of these restrictions consists of the fact that two days after the defendant Kadrey had made a deposit of $1,000 on account of the purchase price of this property, in his contract of resale to third parties he provided that his conveyance should be "subject to restrictions of record" and this is strong evidence that he knew of the restrictions at that time. After this knowledge and after *395
the execution of the formal contract he dealt with the property and with the complainant in such manner as to indicate a waiver of any right to object to the title because of these restrictions. No mention of the restrictions as a reason for refusal to perform was made by the defendant until the filing of his answer in this suit, and it is significant that in the letter, Exhibit C-3, stating the grounds for refusal to perform, there is no mention of building restrictions. It would seem that this defense was an afterthought and as was said inAron v. Rialto Realty Co.,
I will advise a decree for the complainant. *396