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Crowley v. Maalouf

A-3652-01T5 (N.J. Super. App. Div. 2003) (Unpublished)

CONTRACTS; PERFORMANCE; PAYMENT—Even when a contract calls for payment by cash, if a buyer offers a check subject to clearance and agrees to wait until the check clears before taking delivery, it is the equivalent of offering cash.

An employee of a comic book publisher died, leaving comic books and associated artwork to his family. The family members permitted a friend to solicit bids for the sale of the comic book collection. The highest bidder signed two handwritten agreements with the friend (who purported to be the family’s agent), to purchase the collection. The buyer made arrangements with yet another individual to finance the purchase of the collection, and told the family members that he intended to pay them by company check and that he would not take possession of the collection until the check cleared. Ten days after the bidding, the family members filed a lawsuit seeking a declaratory judgment determining the respective rights of the parties under the contract. The family members claimed that the buyer was not ready, willing, and able to purchase the collection because, at the time the bid was accepted, he did not have the funds available. They also claimed that, because the buyer could not tender the purchase price for about a week, he did not perform within a reasonable time. The buyer moved for specific performance to compel the family members to sell the collection to him and accept the payment provided for in the contract. The lower court found in favor of the buyer, noting that the contract did not specify whether the purchase price was to be paid in cash or by use of certified funds. The buyer’s offer not to accept possession of the collection until the check was deposited and cleared was tantamount to paying cash. The family members would have retained possession until they received payment in good funds. As for the argument that the contract was not performed within a reasonable time, the lower court judge noted that the contract’s failure to list a date by which it could be performed did not make the contract unenforceable. In the absence of a specific date for performance, the law allows for it to be performed within a reasonable time period. The buyer’s failure to tender the purchase price was excused because the family members, by filing of the complaint, clearly indicated that they did not intend to tender the collection until a court required it. The Appellate Division affirmed.

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