Procedural posture

Interpleader action; Appeal from trial court awarding for Tuck-it-away (TIA).

Facts

April 13, 1988, TIA (seller) and Vestpro (V) (buyer) entered into a contract for the sale of real property for $1,900,000. V deposited $100,000 in escrow to TIA’s attorneys Pullman, et.al (P) with closing date set for August 12. The 100 grand was for liquidated damages to TIA if V didn’t come through.

The contract stipulated that V could buy four extensions to the closing date for an additional $15,000 each and provided that time was of the essence. V bought all four extensions. In October, both parties agreed in writing to extend the closing date on the property until December 10, 1988 (Saturday).

December 7, Goldman, a V principal, met with TIA’s president, explaining V did not yet have funds for the property purchase. Although not stipulated in the contract, the prez indicated he would permit another extension if V would pay another fee. V refused

December 9, V reps met and decide to send a letter to TIA.

December 14, TIA received a letter from V, mailed December 12, purporting to cancel the contract and that TIA could not convey good title in accordance with the contract because of (1) a pending lawsuit regarding the property dated August 1983, (2) a property attachment dated June 1988, and (3) a legal description defect referenced in the K.

Before the date of closing, December 10, 1988, TIA had a release from the pending lawsuit and attachment. Neither party disagreed or complained of the K’s defective legal description and on September 16, 1988, both received a correct legal description of the property.

V never showed up on December 10.

Holding

R2K § 234 – All or part of the performances that can be rendered simultaneously are due simultaneously unless otherwise stipulated in the contract or circumstances.

Paragraph 4 of this contract provided:

“At the closing, on payment of the purchase price as provided above, the seller shall deliver and the buyer shall accept, a full covenant Warranty deed”

The parties, therefore, agreed the performance would not be rendered simultaneously. V’s duty to perform (bring and give all the muulla) is a condition precedent to TIA’s obligation to tender and convey title.

Discussion

V argued that TIA should not get the $100,000 because they never delivered title on the closing date. The court explained for TIA to tender the deed to a non-appearing buyer would be an “act of futility”. V had an obligation to show up at the closing date with the money. V’s obligation had matured. Since V never came, TIA’s obligation to perform NEVER matured and was excused.