Sanka Classics, Inc. v. Atlantic Terra Cotta Co.

Dore, J. The issue is whether the mortgage tendered to the assignee of the purchaser for execution on the closing date was the mortgage which the purchaser had agreed to execute pursuant to the terms of the contract of purchase and sale. The learned trial court found after a four-day trial that the parties did not leave for future negotiation the terms of the mortgage specifically identified in the contract, and that the purchaser after inspecting the premises and with actual notice of the purchase money mortgage to be executed was bound by the terms of such mortgage including clause 14. Plaintiff does not contend that the mortgage tendered for execution was not in the proper form of the mortgage agreed upon. The undisputed evidence is that clause 14 had been in the same form unchanged since 1933. The contract was made October 18, 1945; arid the last closing date was April 9, 1947. This is not a suit in equity for specific performance; no fraud or mistake is claimed; and no suit for reformation is brought. This assignee has no desire to purchase the property pursuant to the terms of the contract. Plaintiff sues at law [106] for alleged breach of contract by defendant, the seller. The learned trial court properly found that the language of the contract was not ambiguous, that the breach was by plaintiff, as assignee, in refusing to abide by the contract as written and agreed to by the parties; that the court could not write a new contract; and that there was nothing left open for negotiation as to what the precise terms of the contract were. Price, the original purchaser,' never objected to the mortgage and has no financial interest in the outcome of this litigation. The trial court correctly held that plaintiff breached the contract and was entitled to no damages, and also properly dismissed the counterclaim on the merits. The judgment appealed from should be affirmed, without costs.