Goldmann, Conford and Freund. The opinion of the court was delivered by Conford, J.A.D.
[52 NJSuper Page 301] Plaintiff's complaint in the Bergen County District Court seeks the return of $500 paid by her to the defendant as a deposit in relation to a proposed contract and lease for a check room concession. It is averred that the parties agreed that if the terms of a written contract to be submitted to plaintiff by the defendant were not satisfactory to her the deposit would be returned; that this eventuated but that the defendant nevertheless was refusing to return the money.
The proofs show a somewhat different situation. The defendant corporation was about to open a new restaurant and needed a check room attendant. On December 10, 1957 the defendant's officers discussed with plaintiff a proposal for her to lease the concession for the check room for one year from the opening date, December 17, 1957, at a rental of $1,000, and plaintiff paid a $500 deposit against the rental, taking a receipt reading:
"Received from Jean Comerata, 7 Buckingham Court, Maywood, N.J., $500.00 Deposit on check room concession subject to contract and lease to be drawn."
The testimony given on behalf of both sides makes it fairly clear that the parties had an oral understanding at the time of the taking of the deposit not only as to the consideration and term of the lease, but also as to when the balance of the rent was to be paid. The testimony conflicted, however, as to what the latter stipulation was, the defendant contending it was February 1, 1958. Plaintiff at one point in her testimony said it was to be "sometime in February," and, at another, in February "or March." Plaintiff concedes that she also agreed orally to keep the premises "clean and sanitary" and in "excellent order" and to pay for fire, theft and liability insurance and turn the policies over to the lessor. She also said it was agreed that she might sell cigars, but not cigarettes, and that she was to keep the check room open at all restaurant hours.
On December 17, 1957, opening date of the restaurant, plaintiff went into possession and operation of the check room. The next day an officer of the defendant tendered her a written agreement for execution, and she advised him that she would have a lawyer look it over for her. Mr. Bernkoff, treasurer of defendant, testified that defendant never heard from plaintiff concerning the draft of agreement, but that after four days of attendance she failed to return to the premises without explanation. Plaintiff's testimony was that after consultation with a lawyer and finding several provisions in the proffered writing not in accordance
with the oral understanding, she asked the president of the defendant for the return of her $500 for the reason that the draft of agreement "was not satisfactory." There was no testimony by plaintiff that at the time she specified the portions of the writing which were not in accord with the oral understanding or that she requested that the instrument be amended to conform thereto.
Plaintiff testified that the following provisions of the draft were contrary to the oral agreement: (1) that the balance of $500 be paid February 1, 1958, failing which the agreement was to be nullified and the $500 deposit retained by the lessor; and (2) that failure to keep the place in excellent order and to conduct it in an orderly and respectable manner to the satisfaction of the lessor would nullify the contract and forfeit any moneys already paid.
Plaintiff realized net receipts from tips and cigar sales of either $35 or $45 during the four days she ran the check room. The restaurant closed down February 4 or 5, 1958, apparently for lack of business, and the defendant had the property listed for sale at the time of the trial, in March 1958.
The oral determination of the trial judge, sitting without a jury, was as follows:
"Of course the original arrangement between these parties is merely a deposit received for $500 subject to a lease and agreement to be drawn. So that it is necessary in order for the plaintiff to be successful, to establish what the terms of that lease, agreement were and whether those terms were met in the proposed document that was presented. She has testified as to what they were in her opinion and what she objected to in the document which was presented. The defendant has contradicted her testimony in respect to the items which she says she objected to. There is no corroboration on the part of either party. Frankly, under the circumstances, I can't feel that the plaintiff has established her case and there will be a judgment for the defendant."
The first two sentences of the foregoing determination appear on the surface to be in conflict but may be reconciled in the light of the complaint, and plaintiff's opening at the trial, which ...