Bernzweig v. Zwisohn

On May 2, 1904, the plaintiff and the defendant subscribed the following writing:

“This agreement is made between Esther Zwisohn of New York, and Pauline Bernzweig, of New York. The party of the .first part sells the property, 334 East 78th St. to the party of the second part for the sum of Eight thousand and one hundred and fifty doll. ($8,150.00). A deposit of One hundred doll, by check, and the balance of One thousand and fifty Doll, to be paid on taking title within thirty days. The party of the first part agrees to take a bond and mortgage of the second part on the property for the sum of $2000. Two thousand Doll., at the rate of 6% per annum.”

Thereafter plaintiff sought recovery of the sum deposited, and evidence pro and con that the writing was tentative to a later agreement, to be executed, was received. Whether or no a later agreement was to be signed by the parties is quite immaterial. The writing mutually subscribed being an agreement binding upon both parties, recites a sale, sufficiently including a declaration of purchase (Butler v. Thomson, 92 U. S. 412, 23 L. Ed. 684), and so *737testified the plaintiff upon the trial that she bought the house. The right to recover back her deposit pends upon the refusal of the defendant to complete, and this was not shown. The cause must therefore be retried.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.