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Cohn v. Fisher

Decided: January 24, 1972.


Rosenberg, J.c.c. (temporarily assigned).


Plaintiff Albert L. Cohn (hereinafter Cohn) moves for summary judgment against defendant Donal L. Fisher (hereinafter Fisher). The controversy concerns an alleged breach of contract for the sale of Cohn's boat by Fisher.

On Sunday, May 19, 1968, Fisher inquired of Cohn's advertisement in the New York Times for the sale of his 30-foot auxiliary sloop. Upon learning the location of the sailboat, Fisher proceeded to the boatyard and inspected the sloop. Fisher then phoned Cohn and submitted an offer of $4,650, which Cohn accepted. Both agreed to meet the next day at Cohn's office in Paterson. At the meeting on Monday, May 20, Fisher gave Cohn a check for $2,325 and affixed on same: "deposit on aux. sloop, D'Arc Wind, full amount $4,650." Both parties agreed to meet on Saturday, May 25, when Fisher would pay the remaining half of the purchase price and Cohn would presumably transfer title.

A few days later Fisher informed Cohn that he would not close the deal on the weekend because a survey of the boat could not be conducted that soon. Cohn notified Fisher that he

would hold him to his agreement to pay the full purchase price by Saturday. At this point relations between the parties broke down. Fisher stopped payment on the check he had given as a deposit and failed to close the deal on Saturday.

Cohn then re-advertised the boat and sold it for the highest offer of $3,000. In his suit for breach of contract Cohn is seeking damages of $1,679.50 representing the difference between the contract price with Fisher and the final sales price together with the costs incurred in reselling the boat.

A motion for summary judgment is designed to provide a prompt and inexpensive method of disposing of any cause which a discriminating search of the merits in the pleadings, depositions and admissions on file, together with the affidavits submitted on the motion, clearly shows not to present any genuine issue of material fact requiring disposition at a trial. Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67, 74 (1954). The test for determining whether to grant or deny a motion for summary judgment under R. 4:46-2 was there set forth by Justice Brennan:

The standards of decision governing the grant or denial of a summary judgment emphasize that a party opposing a motion is not to be denied a trial unless the moving party sustains the burden of showing clearly the absence of a genuine issue of material fact. At the same time, the standards are to be applied with discriminating care so as not to defeat a summary judgment if the movant is justly entitled to one. [at 74]

Defendant contends in his answer that there was no breach of contract since the agreement of sale was conditional upon a survey inspection of the boat. However, in his depositions defendant candidly admits that neither at the time the offer to purchase was verbally conveyed and accepted nor on the following day when he placed a deposit on the boat did he make the sale contingent upon a survey. This court holds that it may render a decision on the applicable law involved since the movant has clearly excluded any

reasonable doubt as to the existence of any genuine issue of material fact. For, as noted by the court in Judson, supra:

Nor is summary judgment to be denied if other papers pertinent to the motion show palpably the absence of any issue of material fact, although the allegations of the pleadings, standing alone, may raise such an issue. Summary judgment procedure pierces the allegations of the pleadings to show that the facts are otherwise than as alleged. [at 75]

The essentials of a valid contract are: mutual assent, consideration, legality of object, capacity of the parties and formality of memorialization. In the present litigation dispute arises only to the elements of mutual assent and formality of memorialization.

N.J.S.A. 12 A:2-204(1) states that "A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract." Although defendant has admitted to the court that at no time did he condition his offer to purchase the boat upon a survey inspection, he still asserts that the survey was a condition precedent to the performance of the contract. Thus, the issue arises as to the nature of the bargain agreed upon by the parties. N.J.S.A. 12 A:1-201(3) defines "agreement" as meaning:

Under the objective theory of mutual assent followed in all jurisdictions, a contracting party is bound by the apparent intention he outwardly manifests to the other contracting party. To the extent that his real, secret intention differs ...

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