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Hagg v. Sheeler

A-6904-95T1 (N.J. Super. App. Div. 1997) (Unpublished)

LEASES; DAMAGES—If seller of real property never attempted to perform, buyer is not required to show that it is ready, willing, and able to perform.

A contract for the sale of property stated that all renovations to convert the building to a two family house were to be made by buyer, at the buyer’s expense. Although the contract contained a closing date, the parties had an understanding that closing would not take place until the renovations were complete and a certificate of occupancy was issued. Three days before the closing date called for in the contract, the seller sent a letter to the buyer’s attorney stating that since the certificate of occupancy would not be received in time for the scheduled closing date, he was adding $350.00 per day to the purchase price. After the buyer did the work, the seller was able to obtain a certificate of occupancy. This renovation delayed the closing date by three months and the seller then indicated that the delay in closing imposed costs on him such that he could not sell the house at the contract price. However, he offered to give the buyer a chance to match the best offer he received from a re-listing of the property. Two years later, the house sold for $35,000 more than the original contract price. The buyer then filed suit alleging breach of contract. A jury decided that the seller breached the contract and awarded the buyer $95,000 plus interest.

The Appellate Division affirmed the jury verdict. While it may be that the buyer failed to prove he was ready, willing and able to close on the contract, the jury was allowed to conclude from the seller’s repeated demand for a price increase of $350.00 per day of delay that the seller would never have tendered his own performance unless the buyer paid a price higher than the one in the contract. Furthermore, if the seller never attempted to perform, the buyer was not required to show that he was ready, willing and able to perform.


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