Fabry v. Jay

• Decision Date: 14 May 1928
• Docket Number: No. 82.,82.
• Parties: FABRY et al. v. JAY.
• Court: New Jersey Supreme Court

141 A. 780

FABRY et al.

v. JAY.

No. 82.

Court of Errors and Appeals of New Jersey.

May 14, 1928.

Appeal from Supreme Court.

Action by Julius G. Fabry and another against Frederick Jay. Judgment for plaintiffs, and defendant appeals. Affirmed.

Benjamin M. Weinberg, of Newark, for appellant. '

Koehler & Augenbllck, of Newark, for respondents.

LLOYD, J. Appellant is an attorney at law in this state, and the respondents have a judgment against him for damages based on his alleged negligence in advising them that a certain contract for the sale of real estate which the plaintiffs were about to take over by assignment was a legal, valid, and enforceable contract under the laws of New Jersey, while in fact the contract was not an enforceable one.

Appealing from the judgment, appellant urges that the court should have controlled the case by granting the defendant's motion for nonsuit or a motion for a direction of a verdict in his favor; that it erred in refusing a request to charge respecting damages, and in a portion of the charge itself.

The case made by the plaintiffs was that one Holzhauer held a contract with the owners, I. B. Osborn and his wife, Carrie, for the purchase of Holzhauer of certain lots of land, In Ocean county, on which the sum of $600 had been paid. This contract was assigned by Holzhauer to the plaintiffs, they paying therefor $2,100, representing an advance of $1,500 over the purchase price, together with the sum of $600 already paid to the vendors.

The plaintiffs' proofs established that before taking the assignment they employed Jay to represent them in the transaction. He assured them that the contract was a good and enforceable one and that by it they would secure the property. For reasons which it is unnecessary to state, the contract was unenforceable and the vendors refused to convey. Plaintiffs then brought the present action against Jay to recover the loss alleged to have been sustained through the wrongful advice received, alleging that such advise was negligently given.

The ground urged for a nonsuit and for the direction of a verdict in favor of the defendant was that the representations and assurances given to the plaintiffs were not that the plaintiffs could secure the property through purchasing the contract, but that they would have a contract giving them a right of action for damages against the vendors in the event that the latter should refuse to convey. This construction of the language used by the...