W.W.W. Associates, Inc. v. Giancontieri,

566 N.E.2d 639 (1990)


Ds were owners of a two-acre parcel of land, and they contracted for its sale to P a real estate investor and developer. The purchase price was fixed at $750,000 with $500,000 to be secured by a purchase money mortgage payable two years later. The parties signed a printed form Contract of Sale supplemented with several of their own paragraphs. They added a reciprocal cancellation provision and another paragraph gave P alone the unconditional right to cancel the contract within 10 days of signing and that option again to cancel at closing if D was unable to delivery building permits for 50 senior citizens housing units. It was taken as fact that D had been served with process concerning the real property in question. The contract did not close on December 1 and as June 1, 1987 neared with the litigation still unresolved, P wrote D on May 13 telling D that it was ready to close on May 28th and P also sued for specific performance on May 13th. On June 2, 1987, D canceled the contract and returned the down payment, which P refused. D sought summary judgment; the contract gave him an absolute right to cancel. P's claim to specific performance rested upon its recitation of how paragraph 31 got into the deal. The details of that affidavit are on page 588 Farnsworth 6th; D was doing nothing to defend a lis pendens lawsuit against the property and was just waiting until it could cancel on June 2nd. D made no response to these assertions but relied solely on its right to cancel in the contract. D got the motion granted, and the trial court dismissed the complaint. The appeals court reversed granting summary judgment to P and directing specific performance.