Safris v. Somers, 59.

• Decision Date: 01 February 1932
• Docket Number: No. 59.,59.
• Parties: SAFRIS et al. v. SOMERS.
• Court: New Jersey Supreme Court

158 A. 512

SAFRIS et al.

v. SOMERS.

No. 59.

Court of Errors and Appeals of New Jersey.

Feb. 1, 1932.

Syllabus by the Court.

1. Where a vendor is unable to fulfill a contract to convey land free from incumbrance by reason of restrictions on the land, an answer in a suit by vendees to recover deposit money which raises matters outside the contract with respect to an agreement to accept such title as vendor had, held to present no defense and to have been properly stricken out.

2. Held, that vendees were not obliged to make formal tender on day of settlement when it was clear that vendor could not perform the contract, following Bernstein v. Kohn, 96 N. J. Law, 228, 114 A. 543.

Appeal from Supreme Court.

Action by Jacob K. Safris and another against Thomas F. Somers, Jr., executor and trustee of the estate of Thomas F. Somers, deceased. Judgment in favor of the plaintiffs, and the defendant appeals.

Affirmed.

Lionel P. Kristeller, Jacob L. Newman, and George H. Rosenstein, all of Newark, for appellant.

Zucker & Goldberg, of Newark, for respondents.

DONJES, J.

This appeal brings up a judgment of the Supreme Court entered upon order of the Chief Justice striking out the answer and counterclaim of the defendant-appellant, except the answer to paragraph 15 of the complaint (which answer to paragraph 15 denied the proper amount of expenditures made by plaintiffs for examination of title, and which issue was tried and resulted in a verdict for plaintiffs) and ordering judgment for plaintiffs for the balance of the claim. The plaintiffs-respondents contracted with Thomas F. Somers, deceased, to buy a piece of land in Bradley Beach for the sum of $60,000. Four thousand dollars was paid when the contract was executed. The balance was to be paid partly in cash and partly by mortgages on the date of settlement, which was fixed as September 15, 1925. The contract provided that the title should be conveyed by a warranty deed "conveying the premises free and clear of any and all incumbrances except those mentioned in this contract." Those mentioned in the contract were a lease by Somers to one Frost and the rights of the New York Telephone Company in the cables and conduits laid in the premises.

Settlement was not made on the day fixed because the vendor was not in position to convey title free and clear of all incumbrances, there being some restrictions by condition or covenant on the premises. The appellant asserts that the respondents were not able, ready and willing to make settlement at the time fixed, but time was not made of the essence of the contract, and it appears from the proofs that the appellant's decedent tendered himself as willing to make the settlement at a later date. Respondents brought suit to recover the down payment of $4,000, with interest, and their expenses for examination of title. They set out in their...