81 A.D.2d 727 | N.Y. App. Div. | 1981
— Appeal from a judgment of the Supreme Court in favor of plaintiff, entered October 5, 1979 in Rensselaer County, upon a decision of the court at a Trial Term, without a jury. On August 22, 1976, the parties entered into a written agreement pursuant to which defendant was to purchase certain realty from plaintiff for the sum of $65,000. According to the agreement, the purchase offer was contingent upon defendant obtaining a mortgage loan in the amount of $52,000 from a local lending institution at the current rate of interest, but this contingency was to be deemed waived if defendant did not notify plaintiff’s agent, Bryce Real Estate, Inc., by registered mail no later than 45 days after acceptance of the offer of his inability to obtain the loan. Subsequently, on October 5, 1976, defendant and his spouse obtained from the Hudson City Savings Institution a mortgage commitment in the amount of $59,200 which was made subject to any state of facts which further financial investigation or search of the premises might reveal at any time prior to the signing of the bond and mortgage. Plaintiff was allegedly informed that the mortgage application had been approved, and the contractual 45-day mortgage contingency period then expired without further incident on October 7, 1976. With these circumstances prevailing, defendant’s spouse was advised by a letter dated October 8, 1976 from the State Education Department that she would not be able to practice public accountancy in the State of New York without qualifying as a certified public accountant. When the Hudson City Savings Institution was thereafter apprised by defendant of this development, it notified defendant and his spouse by letter dated October 20, 1976 that the subject mortgage commitment was withdrawn, and by letter dated the following day defendant notified plaintiff of the change of the lending institution’s position and of his resultant inability to perform in accordance with the contract. There ensued the present action which was commenced on December 5, 1976 and wherein plaintiff sought specific performance of the contract. Plaintiff also placed the realty in question back on the market, and eventually, on October 21, 1977, she accepted a purchase offer of $55,000 from a third party to whom she conveyed the property on December 2, 1977. The complaint in this action was then amended to demand direct damages of $10,000 plus various consequential damages allegedly caused by defendant’s breach of the contract, and the matter later came on to be tried without a jury. Ultimately, the court awarded plaintiff $10,000 direct damages, i.e., the difference between the original contract price and the eventual sales price for the property, and also consequential damages of $749.57 for property taxes paid by plaintiff from December 1, 1976 to December 1, 1977, $3,900 for one year’s interest on the $65,000 contract price and $1,800 for excess broker’s commissions resulting from the second contract to sell the property. In all, plaintiff’s judgment totaled $13,949.57, i.e., $16,449.57 less a $2,500 deposit which defendant had paid to Bryce Real Estate, Inc. This appeal followed, and we hold that the trial court was correct in ruling that defendant had breached the contract to purchase plaintiff’s property. Although defendant’s duty to
