Portman v. Oppenheim

Appellate Terms of the Supreme Court of New York

Portman v. Oppenheim

50 Misc. 614, 99 N.Y.S. 537

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 15, 1906

StatusPublished

This text of 50 Misc. 614 (Portman v. Oppenheim) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Portman v. Oppenheim, 50 Misc. 614, 99 N.Y.S. 537 (N.Y. Ct. App. 1906).

Pincite

Opinion

Gildersleeve, J.

At the close of the plaintiff’s case, upon motion of the defendant, the complaint was dismissed. The testimony adduced upon the part of the plaintiff must, therefore, be regarded as true. The action was brought to recover the sum of $500 paid by the plaintiff to bind an agreement [615]*615for the sale of a certain piece of real estate by the defendant to the plaintiff. At the time this sum was paid, a writing was signed by the defendant to the effect that the property was sold for the sum of $78,000, to be delivered subject to a mortgage or mortgages aggregating $60,000, the balance to be paid in cash on delivery of the deed, a regular contract for the sale to be drawn October tenth. This writing did not specify the time of payment of the mortgage or mortgages, nor the rate of interest. Upon the day fixed for signing the contract, the plaintiff and his attorney were at the place of meeting, the defendant being absent, although represented by an attorney. A contract signed by the defendant was presented to the plaintiff for execution. Claiming that it did not correctly state the agreement regarding the amount of interest and time of payment which had been made between the parties at the time the deposit was paid, the plaintiff refused to execute the contract submitted and subsequently demanded that his deposit be returned. His testimony was that he and the defendant had agreed that there should be one mortgage of $60,000 at five per cent, or two mortgages, but both were to be for three years at five per cent.; whereas the contract as submitted and signed by the defendant called for one mortgage of $50,000, payable in three years at five per cent., and a second mortgage for $10,000, due in one year at six per cent interest. Inasmuch as the writing signed by the parties at the time the deposit was made was silent upon this question, it thus became necessary to show by parol the terms, regarding the time the mortgages were to run and the interest they were to draw; and, as the plaintiff’s testimony clearly showed that the contract as submitted failed to contain the terms agreed upon, he was not required to execute it and was entitled to a refunding of his deposit.

Davis and Clinch, JJ., concur.

Judgment reversed and a new trial ordered, with costs to appellant to abide event.

Free access — add to your briefcase to read the full text and ask questions with AI

Gildersleeve, J.

At the close of the plaintiff’s case, upon motion of the defendant, the complaint was dismissed. The testimony adduced upon the part of the plaintiff must, therefore, be regarded as true. The action was brought to recover the sum of $500 paid by the plaintiff to bind an agreement [615]*615for the sale of a certain piece of real estate by the defendant to the plaintiff. At the time this sum was paid, a writing was signed by the defendant to the effect that the property was sold for the sum of $78,000, to be delivered subject to a mortgage or mortgages aggregating $60,000, the balance to be paid in cash on delivery of the deed, a regular contract for the sale to be drawn October tenth. This writing did not specify the time of payment of the mortgage or mortgages, nor the rate of interest. Upon the day fixed for signing the contract, the plaintiff and his attorney were at the place of meeting, the defendant being absent, although represented by an attorney. A contract signed by the defendant was presented to the plaintiff for execution. Claiming that it did not correctly state the agreement regarding the amount of interest and time of payment which had been made between the parties at the time the deposit was paid, the plaintiff refused to execute the contract submitted and subsequently demanded that his deposit be returned. His testimony was that he and the defendant had agreed that there should be one mortgage of $60,000 at five per cent, or two mortgages, but both were to be for three years at five per cent.; whereas the contract as submitted and signed by the defendant called for one mortgage of $50,000, payable in three years at five per cent., and a second mortgage for $10,000, due in one year at six per cent interest. Inasmuch as the writing signed by the parties at the time the deposit was made was silent upon this question, it thus became necessary to show by parol the terms, regarding the time the mortgages were to run and the interest they were to draw; and, as the plaintiff’s testimony clearly showed that the contract as submitted failed to contain the terms agreed upon, he was not required to execute it and was entitled to a refunding of his deposit.

Davis and Clinch, JJ., concur.

Judgment reversed and a new trial ordered, with costs to appellant to abide event.

Cite This Page — Counsel Stack

Bluebook (online)

50 Misc. 614, 99 N.Y.S. 537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/portman-v-oppenheim-nyappterm-1906.