On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
The respondents, Sidney Lawrence and his wife, late in 1951 became interested in purchasing a dwelling then under construction by the appellant at 96 Oak Trail Road, Hillsdale, Bergen County. The negotiations culminated in a contract for the purchase and sale of the house, when completed, on the lot upon which it was being erected, for the sum of $23,500, the appellant agreeing to erect upon said premises "a one family dwelling substantially similar in workmanship, material and design (except for changes, if any, hereinafter set forth) to the sample house exhibited to the Purchaser at Lot 5, Block 8-13 Saddle Wood Hills, Hillsdale, Bergen County, New Jersey."
During the negotiations Mr. Lawrence examined the dwelling under construction and became apprehensive about the accumulation of water in the cellar. He was assured this condition was transitory and was due merely to exposure to the elements.
Not being satisfied with the explanation, however, on October 27, 1951, when the contract was about to be signed, he insisted it contain an undertaking by the appellant that
the cellar would be and remain dry. He prepared a memorandum embodying his suggestions and requested it be incorporated in the contract. The appellant agreed to the guarantee but demurred to its being included in the contract because it was a prepared form and would make matters "too complicated." A separate memorandum was therefore drafted and signed by the owner, upon which the respondents immediately signed the contract of sale and paid the deposit called for therein. It read thusly:
"In connection with the sale of premises located on Lot No. 9 as shown on a map entitled 'Map of Hill Section, Saddle-Wood Hills, Boro of Hillsdale' I agree to deliver to you a written guarantee against a wet cellar to expire one year from the date of the delivery of the deed.
and was marked in evidence as P-3.
When the title was closed, a deed was tendered containing no commitment by the appellant concerning the condition of the basement. Lawrence refused to proceed with the closing without a guarantee as had been promised when the contract was signed. The appellant thereupon produced a document, P-4, which read as follows:
"Mr. and Mrs. Sidney Lawrence