Law School Site - Case Brief
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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