Mardon v. Simon

¶1concurs in a memorandum as follows: I concur in the result but disavow any suggestion that the buyer had an obligation to tender performance on January 25,1980, the date set for closing in the contract. Time was not of the essence, so that the buyer would have been entitled to a reasonable adjournment on January 25. Moreover, inasmuch as the buyer’s obligations under the contract were subject to the issuance of a mortgage commitment on or before January 20,1980, a January 24 mailing of a notice of election to terminate for failure to obtain a mortgage commitment would have been timely. (Although the seller had five days from January 20 to give notice, notice had to be by certified mail and was deemed given the “next business day following the day of mailing”.) The buyer could therefore sit on his right to terminate until January 24. In the event he had not obtained the commitment sought by that date, he could then decide whether to cancel or to close by tendering all cash or making up in cash the difference between the commitment sought and any commitment previously obtained for a lesser amount. Thus, it is fairly obvious that none of the parties could realistically have contemplated a closing on January 25. Indeed, it is highly unlikely that even if a commitment were obtained by January 20 the bank would have been able to close five days later, given the practicalities involved in scheduling a closing, including ordering and reviewing a title report. Consequently, the buyer’s failure to tender performance on the 25th would appear to be of no significance. While I agree with the majority that *807it is not at all certain that the seller’s letter of January 23 on its face can be construed as a clear and unequivocal cancellation of the contract sufficient to constitute an anticipatory breach, the letter of January 26 does not suffer from such ambiguity. It was a clear and unequivocal renunciation of the contract, assuming, of course, that the buyer’s attorney had not, as the seller contends, agreed orally to a termination of the contract on January 23. It is equally clear that the buyer considered the contract breached on the 26th, since he proceeded to prepare the summons and complaint upon which this action is based. He did not, as he had done after receiving the letter of the 23rd, contact the seller or otherwise take action communicating to the seller that he would insist on holding the seller to the contract. (See Becker v Seggie, 139 App Div 463; see, generally, 10 NY Jur, Contracts, § 369.) I believe a question is raised as to the content .and effect of the conversation between the attorneys on the 23rd, although it is noteworthy that the contract forbids oral modifications of its terms. A resolution of these issues will determine the legal effort of the seller’s letters of January 23 and 26.