#### Aaron Stone, Appellant, *against*John Thaden, Respondent.

(Decided June 2d, 1890.)

A receipt, signed by defendant, for a sum of money, paid him by plaintiff, recited that it was in part payment for a certain house, the price of which was specified, subject to mortgage. When the parties subsequently met to execute the contract, it was discovered that plaintiff had intended to purchase the fee, which defendant could not convey, having only a leasehold of the ground. *Meld,*that, on proof of the fact, plaintiff might recover back the part payment.

Appeal from a judgment of the District Court in the City of New York for the Seventh Judicial District.

The facts are stated in the opinion.

*Benno*Loewy, for appellant.

*Langbein Bros. Langbein,*for respondent.

Per Curiam.

[Present, Larremore, Ch. J., and Allen and Bookstaver, JJ.]—The basis of this action rests upon the following receipt:—

> “ Received from Aaron Stone twenty-five dollars ($25) ; *281the same is part payment for house 503 West 47th street, the price to be $21,000 (twenty-one thousand dollars). Subject to mortgage.

L. W. Thaden,

L. Thaden,” and signed only by the defendant.

It may be premised that in this case at 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 the 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, or 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. No supposed general knowledge of a purchaser, as to the character and restrictions of any locality, can be legally presumed.

*282A 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 retrial, may be able to make a stronger case.

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