
    Aaron Stone, App’lt, v. John W. Thaden, Resp't.
    
      (New York Common Pleas, General Term
    
      Filed June 2, 1890.)
    
    1. Appeal — When pacts mat be reviewed on.
    Where it appears from the whole evidence that the intention of the parties to a contract is in doubt or misunderstood, a review of the facts is. justified on appeal.
    g. Vendor and purchaser — Recovery op purchase price.
    Plaintiff paid twenty-five dollars and took a receipt, stating that it was in part payment for a house, the price to be $21,000. It did not state that the building was on leased ground and plaintiff subsequently refused to sign a contract for that reason. The evidence as to what was intended to be sold was conflicting. Held, that it could not be reasonably supposed that plaintiff intended to purchase only the bricks and mortar of the structure, which would be of little value when removed, and that under the evidence he was entitled to recover back the sum paid.
    Appeal from judgment of the seventh district court.
    Action to recover money paid upon an alleged contract to purchase real estate.
    
      Benno Loewy, for app’lt; Langbien Bros. & Langbien, for resp’t.
   Per Curiam.

The basis of this action rests upon the following receipt:

“Bec’d from Aaron Stone twenty-five dollars ($25); the same is part payment for house 503 West 47th street, the price to be $21,000 (twenty-one thousand dollars). Subject to mortgage.
“ J. W. Thaden.
“L. Thaden.”

ana signed only by the defendant.

Ii may be premised that in this case p,t least it was understood to be a contract. The parties subsequently met to execute the contract of the sale of the premises in dispute, when it was first discovered that their minds had not met upon the transaction involved.

It is an elementary principle of law that a receipt may be explained. This rule was sought to be applied in the present litigation.

Is it reasonable to suppose that the plaintiff only intended to purchase the “ bricks and mortar of this structure, which upon its removal from the soil, according to the testimony upon the trial, was absolutely worthless? An issue was raised upon the fact as to the cost of the building, but the evidence upon this point, if material for any purpose, should have been restricted to its actual market value, and the exception upon this point was well taken.

It is claimed that the disputed question of fact as to what was intended to be sold, having been decided adversely to the defendant, is not reviewable upon appeal. In ordinary cases this principle is always upheld, but when it appears from the whole evidence that the intention of the parties to a contract is in doubt or misunderstood, a review of the facts is not only allowable but justified.

There was nothing in the receipt to apprise the plaintiff that the house stood upon leasehold ground for the period of its duration. For aught that appears, the lease might have expired the day after his purchase.

A contract for the sale of real estate should be specific in terms. Mo supposed general knowledge of a purchaser as to the character and restrictions of any locality can be legally presumed.

A house affixed to the freehold is a part of, and passes with it. Ward v. Kilpatrick, 85 N. Y., 413.

The receipt was but a preliminary to the contract, and the provisions of the statute of frauds are applicable, Cagger v. Lansing, 43 N. Y., 550; Baldwin v. Palmer, 10 N. Y., 232. The plaintiff upon the evidence was entitled to recover the amount paid on account of the purchase.

It is possible, however, that the defendant on a re-trial may be able to make a stronger case.

The judgment should be reversed, a new trial ordered, with costs to abide the event

Larremore Oh. J., and Bookstaver, J., concur  