Harris v. Street ( 1923 )

Per Curiam.

The above case was submitted on briefs at the Pebruary term, 1923, of the Supreme Court and decided on June 7th, 1923. In the opinion filed the following statement was made: .“The seller having failed to perform her contract, she is bound to refund the amount she received as a deposit.” The defendant in the present action was the seller referred to in the above sentence and calls by petition the- court’s attention to the fact that the Court of Chancery in a suit filed by the petitioner for specific performance (reported in 93 N. J. Eq. 83, and affirmed by the Court of Errors and Appeals in Id. 503) held that the contract was not enforceable because the minds of the parties had failed to meet. The petitioner feels aggrieved that there should appear in an opinion of this court a statement to the effect that she had failed to perform her contract for the sale of her real estate. The petitioner asks that either a rehearing be granted her or the mistake to which attention has been called be corrected. We think the petitioner is entitled to the latter request, so the opinion will be removed from the records of the court and another opinion substituted which will in this respect read: “The minds of the parties to the contract for the sale of the real estate mentioned not having met the seller [Elizabeth Street] was bound to refund the amount she received as a deposit, as the law implied a contract on her part to do so, which she has failed to perform.”