On appeal from Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Burling, J. Heher, J., concurring in result.
[14 NJ Page 477] This is a civil action relating generally to the rights of the parties with respect to an alleged breach of a contract for the sale of real estate. Frank La Salle, the plaintiff, instituted the suit in the Middlesex County District Court against Ines F. La Pointe, the defendant, who filed a counterclaim. From an adverse judgment the plaintiff appealed to the Superior Court, Appellate Division. There was a reversal and the defendant petitioned for certification, which we allowed. 13 N.J. 391 (1953).
The contract entered into bound the defendant as the vendor to "* * * well and sufficiently convey to the said purchaser (the plaintiff herein), his heirs and assigns, by Deed of Warranty free from all encumbrances * * *" certain described land, on a specified date.
The contract also included the following provisions:
"The seller represents and warrants that the refrigerator delicatessen case, all counter and shelves in the store, 1 cash register, 1 glass show case, 1 meat slicer, 1 coffee grinder, 1 counter scale, 1 wooden partition, the gas range in the apartment, and such screens and screen doors as are now in the premises are owned by the seller and are included in this sale as part of the purchase price hereinabove mentioned.
The risk of loss by fire or otherwise shall be on the seller until the closing of title.
This Contract is entered into upon the knowledge of the parties as to the value of the land and whatever buildings are upon the same, and not on any representations made as to character or quality."
The day for closing title had been set at November 30, 1951. On November 26, 1951 the plaintiff ordered a survey, which was completed November 29, 1951. The survey disclosed that the building, in particular the easterly brick wall support thereof, supposedly on the land which was the subject of the agreement of sale overlapped on the adjoining land, an encroachment on the adjoining premises of 0.36 of a foot (approximately 4.32 inches). On discovery of this plaintiff immediately elected to rescind the contract and notified defendant thereof. (Adequacy of the mechanics of the rescission is not questioned by the parties to this appeal.)
On January 21, 1952 the defendant advised the plaintiff that she had acquired a six-inch strip of land to remove the above mentioned encroachment and was willing to include that strip in a conveyance to the plaintiff.
On August 18, 1952 the plaintiff instituted this action to recover from the defendant his deposit money, costs of survey and costs of examination of title, all of which totalled $235. The defendant counterclaimed, alleging that the plaintiff had breached the contract, and claiming damages therefor in the amount of $1,000. The trial court entered judgment in
favor of the defendant on both the complaint and the counterclaim. The Appellate Division reversed, ordering judgment in favor of ...