WELLS et al.
LEE BUILDERS, Inc.
Reargument Denied Oct. 30, 1953.
Action for specific performance of contract for sale of land. The Court of Chancery, Sussex County, 92 A.2d 710, entered decree for specific performance, and defendants moved for new trial or to reopen and for leave to file supplemental answers. Court of Chancery, Sussex County, 95 A.2d 692, denied motion, and defendants appealed. The Supreme Court, Wolcott, J., held that record did not support conclusion that defendant vendors had prevented purchaser from performing its obligation to remove dwelling on premises to a new location, and that purchaser was not entitled to specific performance when its obligation of removing dwelling had not been fulfilled.
Judgment reversed, and cause remanded with directions.
[34 Del.Ch. 108] Daniel O. Hastings and Clarence W. Taylor of Hastings, Stockly & Walz, Wilmington, for appellants.
Albert W. James and H. James Conaway, Jr., of Hering, Morris, James & Hitchens, Wilmington, for appellee.
SOUTHERLAND, C. J., and WOLCOTT and TUNNELL, JJ., sitting.
On May 12, 1950, the appellants, two elderly widows, hereinafter called defendants, entered into a contract for the sale of land with one Morgan, a nominee of the appellee, hereinafter called plaintiff. The contract was for the sale of two adjacent tracts of land in Elsmere, New Castle. Erected on the two tracts is a double dwelling house in which the two defendants live, each on her own side.
By the contract, the plaintiff was obligated to pay down the sum of $1,000 and to pay the sum of $19,000 on the day of final settlement. Prior to the day of final settlement, the plaintiff was obligated to move the double dwelling house to a new location on a portion of the defendants' land reserved from the contract of sale. The contract purports to specify the manner in which the moving of the dwelling should be accomplished. The day of final settlement was fixed at September 1, 1950, which time was expressly declared to be of the essence of the contract.
The plaintiff made the initial payment of $1,000 but did not move the dwelling house prior to September 1, 1950. On September [34 Del.Ch. 109] 1, 1950, the parties entered into an agreement which extended the time for final settlement under the contract to on or before November 15, 1950, and ratified and confirmed in all its other terms the contract of May 12, 1950.
Thereafter, although the plaintiff had not moved the dwelling house to its new location, it, on November 1, 1950, served notice on the defendants that it proposed to hold final settlement under the contract on November 6, 1950. The defendants did not appear at the time and place specified in the notice. The plaintiff, thereupon, filed its complaint alleging a breach by the defendants of the contract of sale and praying that they be compelled to perform.
After trial, the Vice-Chancellor entered judgment ordering the defendants to convey the land in question to the plaintiff upon the removal of the dwelling house by the plaintiff in accordance with the contract and upon payment by it of the balance of the purchase price. From this judgment the defendants have appealed.
It is fundamental law that a party seeking a decree for specific performance of a contract must, himself, have performed within the time specified his own obligations under the contract. 4 Pomeroy's Equity Jurisprudence (5th Ed.), § 1407; Jones v. Carpenter, 13 Del.Ch. 172, 117 A. 559; Coyle v. Kierski, 10 Del.Ch. 229, 89 A. 598. It is, however, equally fundamental that the failure of a plaintiff to have performed his own obligation will be excused if he was prevented by the other party from performing his obligation. Wilkins v. Evans, 1 Del.Ch. 156; Kittinger v. Rossman, 12 Del.Ch. 276, 112 A. 388; Morgan v. Wells, Del.Ch., 80 A.2d 504.
We do not understand the parties to differ with the basic rules set forth above. They do, however, differ upon the application of the rules to this particular controversy. The defendants argue that the plaintiff having failed to perform its obligation of moving the dwelling house within the time specified, is not entitled to specific performance after the expiration of the time. The plaintiff admits it has not performed its obligation within the time, but ...