Price v. Van Lint, 120 P.2d 611 (N.M. 1941).

Speculative timing of performance--

(1) Facts. Van Lint (D) agreed to loan Price (P) $1,500 by Febru­ary 1, 1940, for construction of a building. In order to secure the loan, D was to receive a mortgage on the property. Since P was purchasing the property on which the building was to be constructed from D's employers, both parties were aware at the time the agreement was made that special circumstances might prevent P from tendering a mortgage by the date of the loan (title to the land that P was purchasing from D's employers had to be cleared through the main office in the Netherlands). D had difficulty raising funds sufficient to cover the loan by the prescribed date and informed the suppliers who had al­ready supplied materials to P that he (D) would be unable to supply the loan. P suffered a two-and-one-half-month delay in the completion of the building as a result of D's failure to fi­nance the project. P sued for damages. D claimed that P's in­ability to tender the mortgage on the date the loan was to be made excused him from counterperformance. The trial court ruled that the promises were independent and granted judg­ment for P. D appeals.

(2) Issue. Does the fact that both the buyer and the lender knew, at the time the contract was made, that the purchaser might not be able to tender a mortgage on the date set for the loan make the promises independent?

(3) Held. Yes. Judgment affirmed.

(a) When a contract contains mutual promises and the time for performance for one party is to (or may) arrive before perfor­mance by the other, the promises are independent. Therefore, P's failure to tender a mortgage on the date of the loan did not preclude P from recovery for breach of the promise made to him.

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