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Law School Site - Case Brief


Cohen v. Kranz, 189 N.E.2d 473 (N.Y. 1963).


Kranz (P) contracted to purchase Cohen's (D's) home for $40,000; P paid $4,000 down. Although the original closing date was November 15, P obtained an adjournment until December 15. On November 30, P's attorney requested that D return the down payment because of structural defects that allegedly rendered title unmarketable. D refused and there­fore neither party tendered performance on the closing date. P sued to recover the down payment plus title searching costs, and D counterclaimed for breach of contract. The trial court gave judgment for P because a swimming pool on the premises lacked a certificate of occupancy and a fence projected over the property line. Both defects violated protective covenants. The trial court also found that defective title excused P from tender of further payment, since D made no effort to remedy the defects after being informed of their existence. The appellate division reversed, finding that P did not inform D of the specific defects and that, since the defects were "curable" upon timely notice, P's rejection of title in ad­vance was a default precluding recovery of the deposit. P appeals.


Can a vendee recover money paid on a contract without tendering performance when the vendor's title is curably defective?

Held. No. Judgment affirmed.

A tender and demand for counterperformance are required to put the vendor in default when his title could be cleared without diffi­culty in a reasonable time. Since the defects were curable, P's fail­ure to tender, as well as his advance rejection of title, work as an anticipatory breach of contract and preclude his recovery of the down payment.


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