Planter v. Zintz

• Citation: Planter v. Zintz, 137 A. 317, 5 N.J.Misc. 495 (N.J. 1927)
• Decision Date: 07 May 1927
• Court: New Jersey Supreme Court
• Parties: DONALD M. PLANTER v. HARRY ZINTZ ET UX

137 A. 317

PLANTER

v. ZINTZ et ux.

Supreme Court of New Jersey.

May 9, 1927.

Suit by Donald M. Planter against Harry Zintz and wife.On plaintiff's motion for summary judgment.Judgment entered.

Argued before PARKER, J., at Chambers.

Ward G. Berry, of Hackensack, for plaintiff.

Howard Mackay, of Hackensack, for defendants.

PARKER, J.The suit is to recover back money paid on account of the purchase of real estate, the claim being that the title is not as stipulated in the contract.It is stated in one of the briefs that a copy of the contract is annexed to the complaint, but I do not find it annexed to the copy submitted to me, nor is it referred to in the body of the complaint as annexed, as provided by rule 37 of the Supreme Court.I take the provisions of the contract as pleaded in the complaint, as well as the alleged restrictions claimed to be of record and affecting the title.

The complaint begins by pleading a contract to convey by warranty deed free of encumbrances, and it seems quite manifest that the eight restrictions on the use of the premises set up in the complaint, and for the most part admitted in the answer, amount to such incumbrances as would entitle plaintiff to reject the title unless they are removed.Oddly enough, no reliance is placed on this clause, but plaintiff resorts to a special clause that the plaintiff should at his option be entitled to be released from all obligation under the contract, should an examination of title disclose that said premises are subject to restrictions preventing the use of said property, or any part thereof, for business purposes.The complaint then recites eight restrictions, among which is: (3) That no part of any house erected upon the premises shall stand within 20 feet from the line of the street upon which the premises front; porches, porch steps, and porte-cochèrs excepted.The question argued is whether this prevents the use of any part of the property for business purposes, and seems to turn upon the further question whether the word "house" is to have a meaning confined to a building used exclusively for dwelling purposes.The defendants argued for this restricted meaning and invoke the clause about "porches, porch steps, and porte-cochèrs" as supporting it.

In 30 C. J. 472, the word "house" is characterized as "an ambiguous word with various meanings dependent upon or made evident by the purpose of the parties and the subject-matter of the instrument."In Webster's...