On appeal from Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J.
The trial court held there were no issues for the jury's determination and granted judgment on the plaintiff's motion. The defendant's appeal, taken to the Appellate Division of the Superior Court, was certified here on our own motion.
The suit arose out of a transaction concerning a tract of land in Manasquan owned by William Weir of Washington,
D.C. A tenant, Herman Doctofsky, occupied a dwelling on a part of the tract. Paul Cranmer, also Weir's tenant, occupied a small office building on a part of the lot facing on another street. Doctofsky and Cranmer attempted to buy their respective lots and buildings from Weir, who refused to sell the separate parcels or to sell the entire tract at the price they offered.
After these negotiations failed, the defendant, a real estate agent, got in touch with the owner and obtained a price from him for the entire tract. Edwards asserts Doctofsky initiated the transaction by asking him to acquire the property in his own name without disclosing Doctofsky's interest in the matter because of bad feeling between him and Weir growing out of earlier dealings. Doctofsky denies this and insists that Edwards' agent first approached him and offered to sell him the house and land which he occupied. Whoever initiated the transaction, the defendant, in pursuance of it, entered into a contract to purchase the property in the name of the L. D. Edwards Agency "for assignment to their client or clients" and, on the execution of it, paid Weir $2,000 which had been advanced by Doctofsky on account of the purchase price.
It was orally agreed by Doctofsky and the defendant's representative a survey was to be made in order to establish the line of demarcation between the Doctofsky and Cranmer lots and the survey was completed before the date set for closing title. A contract embracing the entire transaction was to be prepared by the plaintiff, Doctofsky's attorney. On his failure to act, the defendant drew up a contract which Doctofsky refused to sign because it did not contain a provision for a mortgage or survey.
Doctofsky meanwhile was encountering difficulty in placing the $12,000 mortgage he needed in order to purchase his part of the tract. After being turned down by a bank and a building and loan association, he sought and secured the assistance of the defendant, who found a borrower ready and willing to make the mortgage loan. Doctofsky then decided, apparently, not to complete the purchase and demanded the
return of the $2,000 he had advanced. The defendant, having paid the money over to the owner in consideration of the contract for the sale of the land, refused the demand, whereupon Doctofsky assigned his claim to the plaintiff, who brought this action for its recovery.
The case was tried before a jury. At the conclusion of the testimony, the plaintiff moved for judgment in his favor and the court granted the motion on the ground that the transaction amounted merely to preliminary negotiations from which the parties had a right to withdraw prior to the execution of a formal contract between them.
The defendant appeals from the judgment entered below, asserting the evidence raised a question of fact that should ...