
    Isaac Portman, Appellant, v. William Oppenheim, Respondent.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Evidence — Parol evidence — General rules — Instruments incompletely expressing intention of parties.
    Where the vendee of real property deposits money to bind a sale, upon a writing that states the property is to be sold subject to certain mortgages but is silent as to the time of payment of the mortgages or the rate of interest they bear and provides that a regular contract of sale should be signed on a future day, in an action by the vendee to recover the deposit, parol evidence is proper to show that the agreement as to the time of payment and rate of interest of the mortgages, was different from that contained in the contract tendered by the vendor in performance of his agreement and that the vendee was, therefore, not bound to execute it and was entitled to have the deposit refunded.
    Appeal by the plaintiff from a judgment dismissing the complaint, rendered in the Municipal Court of the city of Mew York, ninth district, borough of Manhattan.
    Engel, Engel & Oppenheimer, for appellant.
    Morton Stein, for respondent.
   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 for 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.  