Daniel D. FRIEL, Edwin A. Gee and J. Craig Yacoe, Plaintiffs,
E. Russell JONES, Executor of the Estate of Alexia duPont Ortiz deBie, Defendant.
[42 Del.Ch. 149] Daniel L. Herrmann, of Herrmann, Bayard, Brill & Russell, Wilmington, for plaintiffs.
Donald C. Taylor and H. Alfred Tarrant, Jr., of Cooch & Taylor, Wilmington, for defendant.
SHORT, Vice Chancellor:
This is an action for specific performance of an alleged contract of sale of a parcel of real estate. Defendant has moved for summary judgment. This is the decision on that motion.
On December 6, 1963, the defendant caused to be published a Notice of Sale of five parcels of land of the Estate of Alexia duPont Ortiz deBie. The notice called for sealed bids to be opened at the office of Howard L. Williams, Esquire, on January 28, 1964. It set forth the terms of sale and provided, inter alia, that the sellers would
deliver a good, marketable, fee simple title at settlement and that only bids which covered all of the lands would be considered. The notice was published over the typed name of 'Howard L. Williams, Attorney for the Estate of Alexia duPont Ortiz deBie.' On January 14, 1964 the defendant caused to be published an Amended Notice of Sale of said lands. The amended notice provided that bids might cover any one or more of the parcels or any combination thereof. It also contained the following provisions: 'The properties will be sold to the bidder or bidders whose bids in the aggregate add up to the highest total number of dollars. Provided, however, that if no bid, or only a nominal bid, is received on one or more parcels '1' through '4', then, the Executor reserves the right to reject all bids.' The amended notice was likewise over the typed name of 'Howard L. Williams, Attorney for the Estate of Alexia duPont Ortiz DeBie.'
On January 28, 1964, plaintiffs submitted a sealed bid. Insofar as it is material to the present issue, plaintiffs' bid was in the following language:
'Parcel Numbers as Shown
on Plot Submitted by
H. L. Williams Dollars Bid
1 $ 58.100
2 & 5 * $136.100
4 $ 61.100
1, 2, 3, & 4 ** $381.100
1, 2, 3, 4, & 5 $402.100
* Bid contingent upon sale of both parcels to this bidder
** Bid on this particular combination is contingent upon approval by this bidder of the buyer of parcel 5 and his plans for use and development of parcel 5
[42 Del.Ch. 150] 'This bidder reserves the right to limit his purchase to not more than two of the above parcels or combinations of parcels.*****
'It is understood that settlement for the balance due on any sale or sales to me will not be required in less than 30 days from your acceptance of such bid or bids.
'All bids made here are contingent upon the seller providing marketable, good fee simple title to the property and on understanding that there are no easements or restrictions or encumbrances on the property which have not been described in the notice of sale from Williams dated December 6, 1963, and January 14, 1964.***'
At the opening of the bids on January 28, 1964, plaintiffs were the highest bidders for the combination of parcels 2 and 5 and for parcel 4. By letter dated January 28, 1964 defendant's attorney advised plaintiff that he was the successful bidder as to parcels 2 and 5 for the sum of $136,100 which bid was thereby accepted. The letter further advised that 'The Executor has rejected all bids on Parcel No. 4 because, in his opinion, the bid prices were inadequate.' Settlement arrangements were made for consummation ...