202 F2d 461 Jacobsen v. Sweeney

202 F.2d 461




No. 11445.

United States Court of Appeals District of Columbia Circuit.

Argued December 8, 1952.

Decided February 19, 1953.

Rehearing Denied March 17, 1953.

Jeff Busby, Washington, D. C., with whom Jeff Busby, Jr., Washington, D. C., was on the brief, for appellant.

William T. Hannan, Washington, D. C., for appellee.

Before CLARK, PROCTOR and FAHY, Circuit Judges.


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This appeal grows out of a suit for damages for breach of a written contract for sale of a business and a leasehold of premises upon which the business was conducted. The leasehold, being for a term of years, was an estate or interest in land, a chattel real. D.C.Code § 45-801, 804 (1951). Accordingly, the agreement of sale, covering an interest in land, required a writing signed by the party to be charged. D.C.Code § 12-302 (1951).


An important question is whether an oral agreement of the parties extending the time for performance of the contract, covered by the writing, is valid and binding upon the vendee (appellant), who failed to perform within the extended period. Judge Keech of the District Court upon the evidence ruled that time was not of the essence of the contract; that the original performance date could be legally waived before breach, and was so waived by the oral understanding of the parties. Therefore, he held the vendee liable for his failure to perform within the extended time. We agree with the ruling of Judge Keech on this and other points raised on this appeal, and for a full and detailed understanding thereof refer to his opinion, Sweeney v. Jacobsen, D.C., 1952, 103 F.Supp. 393.