KATZ v. KATZ, 134 N.J.L. 303 (1946)

47 A.2d 423

DAVID KATZ, PLAINTIFF-APPELLANT, v. DORA KATZ AND JOSEPH S. KATZ, ADMINISTRATORS OF THE ESTATE OF MEYER KATZ, DECEASED, DEFENDANTS-APPELLEES.

Supreme Court of New Jersey.Argued May 7, 1946 —
Decided June 3, 1946.

Where a contract contains no stipulation as to damages for its breach a purchaser who alone repudiates the contract without justifiable cause cannot recover what he has paid under it.

On appeal from the Second Judicial District Court of Middlesex County.

Page 304

Before Justices PARKER, DONGES and OLIPHANT.

For the plaintiff-appellant, Leo S. Lowenkopf.

For the defendants-appellees, David T. Wilentz (Arthur J. Sills, of counsel).

The opinion of the court was delivered by OLIPHANT, J.

Plaintiff sued to recover the balance of a sum paid by him as a deposit on a contract to purchase a business made between him and Meyer Katz, deceased. A total sum of $5,500 had been paid in part payment. Plaintiff refused to complete performance and after such refusal, Meyer Katz, deceased, returned to him the sum of $5,000 retaining $500. Plaintiff also paid $50 to the attorney of Katz in payment of his services. The contract is silent as to damages for its breach. This was the state of the proof at the close of plaintiff’s case. The attorney for the defendant moved for a judgment of nonsuit which was granted. We find no error in this action.

Where a contract contains no stipulation as to damages for its breach a purchaser who alone repudiates the contract without justifiable cause, as in the case sub judice, cannot recover what he has paid under it. Steinbach v. Pettingill, 67 N.J.L. 36; Thompson v. Killheffer, 98 Id. 359; reversed on other grounds in 99 Id. 439; Blank v. Berger, 104 Id. 569; Moore v. Durnam, 63 N.J. Eq. 96; affirmed, 69 Id. 828.

Judgment affirmed, with costs.

Page 305