Evelyn E. Heard v. Russell Eldridge

PER CURIAM. On motion therefor the District Court granted appellee summary judgment. This judgment directed appellant to perform specifically a certain written agreement dated December 3, 1965, to sell to appellee for 20,000 dollars the real estate described in the judgment, other terms being set forth in the agreement. The judgment contained provisions to effectuate the performance directed by the court. The appeal rests upon appellant’s contention that the agreement provided for settlement “to be made as soon as building permit is issued,” and no building permit had issued when appellee tendered performance. The language regarding a building permit was typed on the printed form of agreement for sale and purchase. These few words thus inserted should not be interpreted in the context in which they appear other than as a provision for appellee’s benefit, which could be and was waived by him. South Shore Skate Club, Inc. v. Fatscher, 17 A.D.2d 840, 233 N.Y.S.2d 372, 374. Cf. Metz v. Heflin, 235 Md. 550, 201 A.2d 802 (Md.). Affirmed.