El Dorado Hotel Properties, Ltd. v. Mortensen

665 P.2d 1014 (1983)

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Nature of the Case

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Facts

A note and deed of trust arose out of the sale of the El Dorado Country Club property by the P to D. The sale closed on January 25, 1982, and was for $ 2,200,000. D paid a total of $300,000 earnest money and payment at closing and gave the note for the balance of $1,900,000. The next payment of $400,000 was due on March 1, 1982. The sales agreement provided in the deed of trust for the release of portions of the property. 'Upon payment of the $400,000.00 plus interest payment due on March 1, 1982, the trustors shall be entitled to have released free and clear of the purchase money Deed of Trust given to secure the unpaid balance herein 70,000 square feet of the subject real estate and any easement reasonably necessary for development of the first released parcel and any subsequent releases…” D contacted P and secured an agreement that if the payment was made by noon on March 5 there would be no default. D notified P right before the 5th that it would make payment and simultaneously receive the deed for that payment. P stated that if unconditional payment was not made by noon March 5 D would file a foreclosure action. D delivered a cashier's check for $400,000 to the title company trustee with a letter authorizing the funds to be disbursed when the deed of release, etc. was recorded. P directed the title company to refuse the payment and the foreclosure complaint was filed on March 5. The court granted summary judgment to P holding that release of the deed could not be completed simultaneously with the payment. D appealed.