De Jianne v. Citizens' Protective Ass'n

74 A. 443, 79 N.J.L. 107, 50 Vroom 107, 1909 N.J. Sup. Ct. LEXIS 8

• Court: Supreme Court of New Jersey
• Decided: November 22, 1909
• Status: Published

Opinion

The opinion of the court was delivered by

Trenchard, J.

This action was brought to recover the moneys due under a written contract for the purchase of land.

TJnder the contract the defendant agreed to buy the land for the sum of $22,500, subject to an $8,000 mortgage held by the Mutual Benefit Life Insurance Company, and to pay $100 a month until a certain time, and also to pay the plaintiff the interest on the mortgage, and interest at six per cent, on the balance of the purchase price, “such interest to be paid monthly and in addition to aforesaid monthly payments.”

The $100 installments were paid and this suit is for the interest.

The trial judge, sitting without a jury, rendered judgment in favor of the plaintiff.

First, the defendant, who appeals, specifies as a reason for reversal that the state of demand does not show a breach of the contract. With respect to this specification it is sufficient to say that the demand contains, in effect, an allegation of the breach of the covenant to pay. That is sufficient. Technical accuracy of pleading is not required in the District Court. It is sufficient if the demand states a legal cause of action, apprising the defendant of the claim against him, and so states it that it may afterwards appear what was decided. Patten v. Heustis, 2 Dutcher 293; O'Donnell v. Weiler, 43 Vroom 142.

Secondly, it is said that the state of demand does not allege a demand for payment by the plaintiff and a refusal by the defendant. But demand for payment was not required by the terms of the contract and was therefore unnecessary and need not be averred in the state of demand.

Lastly, it is urged that the plaintiff could not recover because of a provision in the agreement that, upon default in any installment of payment for thirty days, the agreement should be null and void. But the right to consider the agreement void is a right conferred upon the party of the first part thereto, the plaintiff here. It would be an extraordinary construction of this provision to make it confer upon the other party the power to make his. own default in not performing the agreement a discharge of his obligation to perform it. The true construction is that the party of the first part alone could rescind the contract, and the party of the second part cannot take advantage of his own default to work a rescission. Vickers v. Electrozone Com. Co., 37 Vroom 9.

The judgment of the District Court will be affirmed.