On appeal from the District Court.
For the appellant, Abram H. Cornish.
For the respondent, Budd, Larner & Schettino (Samuel A. Larner).
Before Justices Case, Bodine and Perskie.
The opinion of the court was delivered by
BODINE, J. The defendant appeals from a judgment in the sum of $248.34.
The plaintiff on September 11th, 1944, applied to the Equitable Life Assurance Society, the defendant, for a mortgage loan of $30,000 upon property owned by the plaintiff in East Orange, in this state. The plaintiff employed the New Jersey Realty Title Insurance Company to insure the title. This company stated in their letter dated September 25th, 1944, to the plaintiff with respect to the lease of the mortgaged premises, as follows: "We are advised that one of the conditions to the making of the loan is that the lease be in form and on terms acceptable to the Equitable and that the lessor's interest therein be assigned to the Equitable under its regular
form of assignment, which assignment is to be recorded. In addition, we are to serve notice on the tenants on the form provided by the Equitable. I have enclosed herewith a copy of each.
"We are also to examine the lease of The Great Atlantic and Pacific Tea Company" -- one of the tenants in the premises to be mortgaged -- "and would appreciate your sending it to us at the time of forwarding the title application. After the lease has been examined, we shall return it to you."
One of the plaintiff's officers, contemplating a trip to Florida, executed the bond and mortgage and left it with the Title Company. On December 7th, 1944, the following telegram was sent to the plaintiff: "Harold S. Segal Seahill Co. Mail Care General Delivery Miami Equitable refuses close unless lease subordinated. Tenant refused subordination agreement Unable to close loan today."
In reply to this telegram, plaintiff's principal officer caused the following telegram to be sent: "New Jersey Realty Title Insurance Co. 830 Broad St Newark N.Jer. Equitable never required subordination in legal commitment. We demand closing immediately. Holding you responsible. Reply today." To this telegram, the Title Company sent the following: "Seahill Co. 2534 SW 3rd St Miami Fla. Instructions were lease be in form and terms acceptable to Equitable and Equitable says terms not acceptable unless subordinated. Lessee refused to subordinate and Equitable instructed us not to close. New Jersey Realty Title Insurance Company is not responsible therefor."
On December 9th, 1944, the Seahill Co. wrote the Equitable Life Assurance Society as follows: "Gentlemen: We have received a telegram from the N.J. Realty Title Insurance Co., sent out December 7 at 3.24 p.m., stating that you refused at the last ...