407 F.2d 379 (1969)
Appellee buyer offered to purchase from appellant seller ten insured first mortgages and notes in exchange for some of appellee's stock. Appellant accepted and an escrow agreement provided that appellant's mortgages and appellee's stocks would be placed into escrow by the date the stock was listed on the stock exchange. Appellee listed its stock on the exchange but neither party placed the assets into escrow, and appellee subsequently refused to place its stocks into escrow because a preliminary title report indicated the mortgaged properties were heavily encumbered. Appellant brought an action for breach of contract and the trial court granted summary judgment in favor of appellee on grounds that appellant neither performed nor tendered performance. Appellant challenged the ruling and contended that a material issue of fact existed as to whether appellant could have performed by delivering clear title to the mortgages during the life of the contract.
- The court affirmed and held that since the performance conditions were concurrent appellant failed to adequately tender its performance by relying on appellee to perform first.
- Therefore appellee could not be held in breach.
The court affirmed an order which granted summary judgment in favor of appellee buyer in appellant seller's action for breach of contract in an agreement where appellant agreed to sell insured first mortgages in exchange for some of appellee's stock because appellant's mortgages were encumbered and appellant made an inadequate tender since it could not perform unless appellee performed and the conditions were supposed to be concurrent.
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