Stasi v. NigroStasi v. Nigro
- Reporters:
- , ,
- Before:
- The opinion of the court was delivered by Bodine
The opinion of the court was delivered by
Bоdtne, J. In this suit the plaintiff sought to recover $1,000 paid as a deposit for the purchase оf the respondent’s property in Long Branсh. The payment is evidenced by the following writing: “March 6, 1946 Received from: Mr. Jerry Stasi, 58 Ridge Ave. W. Orange, N. J. $1,000 dollars in cash for deposit on property located at 31 N. Bath Ave., Long Branch, N. J. Bаlance $17,000 dollars will be paid on or about April 1st, 1946.”
The proofs were confusing and conflicting. The learned trial judge charged the jury as follows: “If you feel that the receipt embodied the final understanding of the parties аnd was the first and final contract, the plaintiff could not recover. Further, if you find as a fact that there was something more to be done, that contracts were intended and they wеre not signed, then there was no meeting of the minds, and [the plaintiff] is entitled to recover.” It found a verdict of no cause of actiоn. To have reached that conclusiоn, under the *474 instructions of the trial court, it must have been found, as it could have been found, that the above writing was the first and final contract made by the parties and that the plaintiff had not performed in due course by the paymеnt of the balance of $17,000 on or about April 1st, 1946.
The appellants’ argument is that the deрosit should have been returned in the absence of a valid and enforceable contract under the statutes of fraud. B. S. This argu-
ment overlooks the facts. The agreement itself is nоt uncertain. It mentions a specific prоperty, the amount to be paid therefor and the date of the payment. So long аs the vendor is willing to carry out his contract by mаking the conveyance, no action is maintainable to recover back a сonsideration voluntarily paid. Eaton v. Eaton, 35 N. J. L. 290. If the jury had found something more was to be done than the contract provided, then the appellants would have been entitled to recover. The judge so charged. The proofs being in сonflict it was the court’s province to submit the issue to the jury; but the court’s charge was not сhallenged at the trial and it is too late tо raise any objection to it not pointеd out at that time.
The judgment is affirmed, with costs.
For affirmance — The Chancellor, Chief Justice, Parker, Bodine, Donges, Heher, Colie, Wachenfeld, Eastwood, Wells, Rafferty, Dill, Freund, McGeehan, McLean, JJ. 15.
For reversal — None.