McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by McGeehan, S.j.a.d.
The defendant's motion for dismissal, made at the end of the plaintiff's case, was granted and judgment entered thereon September 20, 1950.
Plaintiff, individually, sued the defendant on two counts. The first count alleged that the plaintiff had paid $1,000 to the defendant as a deposit for the purchase of certain property; that the defendant sold said property to another and, as a result, the deposit is now due and owing to the plaintiff. The second count alleged that the defendant accepted from the plaintiff the sum of $1,000 in consideration of which he was to enter into a formal contract of sale for certain lands belonging to him and other lands which he was to acquire and sell, together with his own, to the plaintiff; that the defendant was unable to acquire the lands which he agreed to convey to the plaintiff and, as a result, no formal contract was executed; and that the $1,000 deposit is therefore due and owing to the plaintiff.
Plaintiff testified that Russell S. McEnaney, her husband, and she sought to buy the defendant's property, consisting of 12 cottages and a house called the "White Birches" and on September 27, 1947, they entered into an agreement. Russell S. McEnaney gave his check for $1,000 to the defendant as a deposit, and he received the following writing signed by the defendant:
Cottages for Rent -- Weekly, Monthly or Season
Netcong Road, Budd Lake, N.J.
Received from Mr. Russell S. McEnaney, One Thousand Dollars ($1,000.00) deposit, on property known as The White Birch Cottages consisting of 13 Furnished houses. Full price $30,000. Balance on occupancy or closing of clear title. Deposits refunded in case of titles not clear.