Eastwood, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
The present appeal introduces legal rather than factual subjects for consideration. A sketch of the factual premise will suffice.
In January 1950 the plaintiff Emile Meola observed a dwelling house under construction by Park Manor Homes at 0-76 Blue Hill Avenue, Fairlawn, New Jersey. Its interior including the cellar was unfinished and he noticed at the time that upon the earth bottom of the cellar stood as much as six feet in depth of water. He doubtless mentally envisioned the dwelling in its completed state and resolved to acquire it upon its entire construction, together with the parcel of land upon which it was being constructed.
At his initial meeting with a representative of Park Manor Homes, the builder, at which he made a deposit of $100 in contemplation of the future execution of a contract, he alluded to the quantity of water in the basement and was told: "Don't worry about it, because the ground is not graded and this water is all running into there. When I get through with your house, I will guarantee you a dry basement without one drop of water." Parenthetically we pause to explain that mention is made of this conversation merely to disclose that the condition of the cellar entered the minds and contemplations of the parties at the inception of their negotiations, eventually casting its reflection on the subsequent claim of the plaintiffs.
Gorga Manor Corporation became the successor in interest of Park Manor Homes and on February 11, 1950 the plaintiffs
and Gorga Manor Corporation executed a contract in writing wherein the corporation covenanted to complete the construction of the house and convey the property to the plaintiffs for the purchase price of $14,300.
In our appellate review of the present case we regard it to be exceedingly significant that the only express covenant in the contract relative to the essentials of the construction of the house is contained in paragraph 10 of the instrument and reads:
"It is understood that the building under construction is to be completed prior to the closing and shall be substantially completed similar to premises 0-71 Blue Hill Avenue, Fair Lawn, N.J., and that the premises shall be completed with all the necessary fixtures and appliances ready for occupancy ready for closing."
The contract was thereafter assigned by Gorga Manor Corporation to the defendant, Fiore Gorga. On August 15, 1950 the plaintiffs and the representative of the defendant assembled at the place designated for the consummation of the sale. There was at that time evidence of the seepage of water into the cellar. The plaintiffs declined to consummate the purchase of the property solely because of the stated defective condition of the cellar. Conciliatory mediations ensued, eventuating in the execution of the following memorandum by the agent of the defendant and upon which the plaintiffs' cause of action was based:
"In consideration of the closing of title to 0-76 Blue Hill Ave. Fairlawn NJ. the undersigned hereby agree that if any leaks or seepage of water into cellar occurs within a period of six months from this date, the same will be repaired by the undersigned at his own cost and expense.