This is a suit by a broker and buyers against the seller for specific performance, damages, and attorney’s fees for the seller’s refusal to proceed with the sale of her home pursuant to an “Earnest Money Reсeipt and Offer to Purchase” agreement signed by the parties. After a bench trial, the district court dismissed the plaintiffs’ suit on the grounds that the signed agreement was invalid (1) for lack of consideration, (2) for the plaintiff buyers’ failure tо tender their own performance, and (3) because there was no meeting of the minds on an encumbrance in the seller’s title.
On October 19, 1978, the seller signed a Sales Agency Contract with the broker, stating on the accоmpanying Listing Form that she owed $16,000 on the home and that her asking price was $33,000. On December 2, 1978, the buyers, two licensed real estate agents who worked for the broker, offered the seller $28,000 for the property. They communiсated this offer by executing a conventional Earnest Money Receipt and Offer to Purchase, which was presented to the seller by Plowman, another employee of *54 the broker. The Earnest Money document, which stated that the buyers were “buying this property for their own use,” specified that the purchase price would be payable $100 as a deposit (“receipt of which is hereby acknowledged”), $2,900 “on delivery of deed or final contract of sale which shall be on or before Dec. 22, 1978,” and “$201.16 Principal and Interest each month commencing February 15th 1979 ... until the balance of $25,000 together with interest [at 9%] is paid . ... ” By a typewritten addition, the Earnest Money offer provided that the buyers would “cash out sellers at the end of five years from closing date.” The offer also specified an escrow account “to make the payments on the sellers’ contract.”
The buyers and the broker were aware at the time of the offer that the seller was purchasing the subject property on a contract whose unpaid balance was approximately $16,000. The offer mаde no specific mention of this obligation or any other, but provided that all “mortgages, chattel liens and other liens, encumbrances or charges against the property of any nature shall be paid by the sellеr .... ” When she received this Earnest Money Receipt and Offer to Purchase, the seller made two additions (pertaining to the home being sold “as-is” and releasing seller from all maintenance responsibility as of the clоsing date) and signed the document. The buyers then initialled the additions, dating their action December 4, 1978.
At the time this contract was signed, the seller was indebted to Citicorp Person-to-Person Financial Center in the amount of $5,000, secured by her assignment to Citi-corp by an instrument dated and recorded July 19, 1978, of all her interest in the real estate contract by which she was purchasing the subject property. The evidence was in conflict on when the buyers lеarned of this encumbrance. Both buyers and the broker’s employee, Plowman, testified that they first learned of the Citicorp obligation when it showed up on the title report, which was dated December 5, 1978, and received at about that time. But the seller testified that she advised Plowman of this encumbrance when she signed the listing contract with the broker. Interpreting the evidence in the light most favorable to the prevailing party, we assume that the trier of fact found that the broker was aware of the Citicorp encumbrance at the time the listing contract was signed. The buyers admittedly learned of the encumbrance from the title report no later than abоut December 5th.
What happened after December 5th is essentially uncontested. At the instance of the buyers, Plowman contacted the seller and advised her that the Citicorp lien would have to be discharged “in order [for her] to sell the home.... ” At trial, one of the buyers explained their position at this time as follows:
Well on an assignment of contract you actually assign the property over to another individual or corpоration which gives them the only right to sell the property and Mrs. Webb had no legal or right in my opinion to sell the home without first clearing off that assignment. *55 willing to close on this transaction,” and requesting that the seller “immediately perfоrm pursuant to [her] obligations under the Earnest Money agreement.” The Citi-corp encumbrance was not mentioned in this letter. Thereafter, the buyers and the broker brought this suit seeking specific performance of the Eаrnest Money agreement, damages, broker’s fee, and attorney’s fees.
*54 On her part, the seller took the position that the Citicorp obligation had to be entirely paid or she would not close the transaction. (She testified that she had advised Plowman of this fact at the time she signed the listing contract.) The seller advised Plowman that she did not have enough money to retire the obligation, and the buyers’ down payment was not sufficient. Apрarently in response to this advice, the buyers had Plowman propose to the seller early in December that they make a larger down payment to help her pay off the Citicorp obligation, but the proрosed additional amount (which does not appear in the record) apparently did not meet the seller’s demand that Citicorp be paid down to zero, so that effort came to naught.
The parties had no further communications prior to the agreed closing date of December 22. Neither party made a tender of performance on or before that date. On January 9, 1979, a lawyer representing the buyers and thе broker wrote the seller advising that the buyers were “ready and
*55
We cannot agree with the district court’s holding that the Earnest Money agreement failed for lack of consideration because the seller (as she tеstified) never received the $100 deposit. Apart from the fact that the seller signed an Earnest Money agreement that acknowledged the receipt of $100, the agreement contained mu--tual promises, which prоvide adequate consideration to make the agreement binding.
Mortgage Investment Co. v. Toone,
We are, however, in agreement with the district court’s dismissing this suit on the basis that the buyers failed to tender their own performance before or at the time оf bringing suit.
This is not a case like
Circle T Corp. v. Crocker,
Since the seller had signed an Earnest Money agreement making no mention of the Citicorp encumbrance and specifying a down payment smaller than the amount of the encumbrance, she could not later make the buyers’ payment of the Citicorp obligation a condition to her proceeding with the closing. On the other hand, in the absence of a contract provision granting such a right, the buyers had no legal right to insist that thе seller totally satisfy the Citicorp encumbrance before the delivery of the final contract of sale.
Cf. Neves v. Wright,
Utah,
The parties were deadlocked in the week preceding the agreed closing date, both having taken a position of doubtful validity on the law or the facts. Both parties insisted that the Citicorp encumbrance be cleared by the other in advance of the closing, buyers because they thоught this was their legal right, and seller because the buyers were insisting upon clearance and because she had made this an oral addition to the contract. This is precisely the sort of deadlock meant to be rеsolved by the requirement of tender.
In a case like this, where the exec-utory contract contains no declaration that time is of the essence, the contract obligations can continue for some time beyond the agreed closing date.
Huck v. Hayes,
Utah,
To qualify under this rule, a tender, such as an offer to pay money, must be complete and unconditional.
Timpanogos Highlands, Inc. v. Harper,
Utah,
The judgment dismissing plaintiffs’ complaint is affirmed. Costs to respondеnt.
Notes
. Where the contract states that time is of the essence, cases hold that both parties are discharged from their contract obligations if neither makes tender by the agreed closing date.
Triton Realty Co. v. Frieman,