The opinion
Peck, P. J.
(dissenting). I agree with Justice Van Voobhis that clause 14 in the mortgage form would have to be adapted to the circumstances of the transaction and conform to the other provisions of the purchase agreement. The parties had their impasse in attempting adaptation. The difference between them on this critical clause amounted to a failure to agree upon an essential term of the contract. I do not think this cast the defendant in default, no matter how unreasonable it may have been, but neither do I think that the plaintiff was obliged to purchase a law suit along with the property. Under the circumstances, I think plaintiff is entitled to recover its payments on account of the purchase price, but is not entitled to recover the cost of the improvements which it made for its own benefit *112 in connection with its use of the property. Accordingly, I dissent and vote to reverse the judgment and grant judgment to the plaintiff for $19,313.75, with interest from April 7, 1947.
Glennon and Callahan, JJ., concur with Dore, J.; Peck, P. J., and Van Voorhis, J., dissent with opinions.
Judgment affirmed, without costs.