Herman v. Most
| Citation | 125 N.J.L. 563,17 A.2d 155 |
| Decision Date | 09 January 1941 |
| Docket Number | No. 424.,424. |
| Parties | HERMAN v. MOST. |
| Court | New Jersey Supreme Court |
Appeal from Fifth District Court, Union County.
Action by Milton Herman against Amicos Most, as executor and trustee of and under the last will and testament of Bucaly L. Most, deceased, on a contract for the sale of certain premises, wherein defendant filed a counterclaim for the balance of the unpaid purchase price. From a judgment for plaintiff, defendant appeals.
Judgment reversed and a venire de novo awarded.
Argued October term, 1940, before TRENCHARD, BODINE, and PORTER, JJ.
Robinson & Morris, of Newark (David Robinson, of Newark, of counsel), for plaintiff-respondent.
Kunzman & Kunzman, of Plainfield (Irving Kunzman, of Plainfield, of counsel), for defendant-appellant.
The respondent sued on a contract for the sale of premises located in Morris County and recovered a judgment from which this appeal is taken.
The amended complaint alleges that a written contract was made by the parties dated July 2, 1938, for the sale of the premises by the appellant to the respondent for $450, of which $200 was paid. That the contract in effect provided that the title was to be marketable but in fact was not because to make it so the will of Bucaly L. Most should have been probated in this State or that Ancillary Letters of Administration should have been taken out in this State, neither of which was done. That certain expense was incurred for title search and legal fees. That the sale was made subject to approval of the probate court and failing that the deposit was to be returned which, upon demand, was refused.
It appeared that the contract of July 2, 1938, was in the form of a receipt for the deposit and contained but a short and informal contract. It was signed by the appellant only. On July 21, 1938, a full and formal contract was executed by both parties expressing in detail the terms and conditions of the sale. There was also a letter from the appellant to the respondent dated September 13, 1938, stating that application would be made to the New York Surrogate's Court for permission to sell the property. The contract of July 21 contained no reference to any probate court's order or permission to sell but did provide that if the title was found not to be marketable the money paid on account was to be returned to the purchaser in which event the obligation of both parties under the contract would be at an end.
The trial court...
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Stewart Title Guar. v. Greenlands Realty, L.L.C., Civil Action No. 97-3577.
...at 48-49 (citing Thomas v. Sun Realty, Inc., 158 N.J.Super. 257, 262, 385 A.2d 1252 (N.J.Super.Ct.App.Div.1978) and Herman v. Most, 125 N.J.L. 563, 565, 17 A.2d 155 (1941)). As a result, the Court directed Additional Counterclaim Defendant, Sun International of North America, Inc. ("Sun"), ......
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Campbell v. Heller
...the whole contract embraced in the prior one. The question of merger is, however, a matter of intention and proof. Herman v. Most, 125 N.J.L. 563, 17 A.2d 155 (Sup.Ct.1941); Magna Mfg. Co., Inc., v. Aetna Casualty, etc., Co., 129 N.J.Eq. 142, 18 A.2d 565 (Ch.1941); Dieckman v. Walser, 114 N......