Ferguson v. Caspar

359 A.2d 17 (1976)

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Nature of the Case

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Facts

Caspar (D) sold her house to Ferguson (P) under a contract that required that the house be free and clear of all Housing Code violations by the time of settlement. D had been informed that there existed 126 Housing Code violations. D never informed P of the violations, but P eventually found out about them before closing and got contractor estimates of $6,125 to fix them. No mention of this fact was made to D. During closing the details of the transaction were finished, and then P made its move with respect to the housing code violations and wanted the escrow officer to withhold $6,125 of the purchase price in order to remedy the housing code violation of which the contract of sale stated must be remedied by closing. The settlement officer then advised everyone present that he could not proceed with the settlement as there was no provision to withhold monies in escrow. By February 13, 1973, after not receiving any further instructions from the parties the settlement officer returned the check informing P that the deed could not be recorded in view of their attorney's letter withholding funds. P's attorney then returned the check to the settlement officer insisting that the deed be recorded. On February 17, D signed a contract for the sale of the premises to McAteer and that deed was executed and recorded on February 23. On February, 21, P filed a complaint seeking a declaratory judgment and specific performance of the contract. That complaint was amended to include the McAteer. D's motion to dismiss was granted by the trial court as P imposed a condition on their tender of payment of full performance of the contract and had forfeited their right to specific performance. P appealed.