Ching-Ming Chen v. Advantage Co., Inc.
Decision Date | 14 March 1986 |
Docket Number | No. 85-212-II,CHING-MING,85-212-II |
Citation | 713 S.W.2d 79 |
Parties | CHEN, Plaintiff-Appellee, and Jer-Wei Corporation, Plaintiff, James P. Bohon and the Bohon Corporation, Plaintiffs by Intervention-Appellees, v. ADVANTAGE COMPANY, INC., Defendant-Appellant, and S.V. Patel and B.B. Patel, Defendants. 713 S.W.2d 79 |
Court | Tennessee Court of Appeals |
Stephen M. Miller, Denny, Lackey & Chernau, Nashville, for plaintiff-appellee, Ching-Ming Chen.
W.E. Weems, III, Ludwick & Lowell, Nashville, for intervenor plaintiff/appellee, Bohon Corp. Gary A. Brewer, Levine, Brewer & Drause, Nashville, for defendant-appellant, Advantage Co., Inc.
Plaintiff, Ching-Ming Chen (Chen), filed his complaint against defendant, Advantage Company, Inc. (Advantage), and sought specific performance of a contract in which plaintiff was to purchase a motel and the real property upon which it was located from Advantage.
Subsequently, plaintiff amended the complaint to add S.V. Patel and B.B. Patel as additional defendants, alleging that they tortiously interfered with his contractual relations with Advantage. The amended complaint also sought damages, rather than specific performance, and added Jer-Wei Corporation, the entity incorporated by plaintiff for the purpose of holding title to the real estate, as an additional plaintiff, and alleged that the Jer-Wei Corporation had lost an opportunity to sell shares of its stock by virtue of Advantage's breach of the contract to sell.
Approximately one year after the original complaint was filed, James P. Bohon and The Bohon Corporation, as the real estate broker who listed the property and handled the sale to plaintiff, intervened and sought recovery of $50,000 from the defendant Advantage as the amount of commission due under the contract to sell.
The pertinent facts are as follows:
On September 24, 1982, Advantage and Chen entered into a written contract wherein Chen was to purchase and Advantage was to sell, for the sum of $1,150,000, a motel located at 400 Main Street, Nashville, Tennessee. Chen was to pay Advantage $100,000 at closing and assume two existing mortgages on the property. The contract obligated Advantage to convey a good and merchantable title and also contained express covenants that taxes assessed against the property prior to plaintiff's purchase were to be paid by Advantage. The contract further stated that the closing "shall take place ... within ten (10) days," thus requiring a closing no later than October 6, 1982.
On October 6, 1982, Advantage's counsel delivered a letter to Chen's counsel in which Advantage offered to indemnify Chen from the tax liens on the motel property. The letter further stated:
Chen declined to accept Advantage's offer of indemnity regarding the taxes. The next day Advantage entered into a contract with the defendant Patels for the sale of the motel for $1,243,732.27.
When the case came on for trial on December 7, 1984, the parties announced that, by agreement, the claim asserted on behalf of the Jer-Wei Corporation and the counterclaim asserted on behalf of Advantage were to be dismissed. At the close of plaintiff's case in chief, defendants S.V. and B.B. Patel moved for a directed verdict, which was granted by the Court. The remaining claims of Chen and Bohon against Advantage were tried before the court and a jury. The jury returned a verdict in favor of Chen for $103,732.27. Judgment was entered for plaintiff Bohon Corporation against Advantage for the sum of $50,000.
On appeal Advantage has presented three issues. We first address its second issue: "Whether the court erred by failing to charge the jury with respect to Advantage's theory of the case as established by its pleadings and the evidence adduced at trial."
Advantage alleged that Chen was "not ready nor in a position to close within the time prescribed in the contract...." Evidence at the trial shows that there was a question as to whether or not Chen would have been able to obtain the $100,000 down payment and assume the two existing mortgages in time for the October 6th closing date. It was necessary that Chen be able to do both of these in order for Chen to fulfill his obligations under the contract.
The trial court submitted the following issues to the jury.
(1) Did the Defendant Advantage Company breach its contract with Plaintiff Ching-Ming (Frank) Chen?
The jury answered: Yes.
(2) Did the breach by the Defendant Advantage Company proximately cause the failure of the sale of the property?
The jury answered: Yes.
It is the defendant's insistence that this was an inadequate submission.
So far as we are able to determine, the trial court did not at any point instruct the jury that it was possible for Advantage to breach the contract, yet still not be liable to Chen for damages. We recognize that Chen had no duty, following Advantage's anticipatory repudiation of the contract, to tender performance, American Textile Machine Corp. v. U.S., 220 F.2d 584 (6th Cir.1955); however, Chen, in order to maintain an action for damages, must at least show a readiness to perform. Officer v. Sims, 49 Tenn. (2 Heisk.) 501 (1870).
Professor Corbin has stated:
In an action for breach by an unconditional repudiation it is still a condition precedent to the plaintiff's right to a judgment for damages that he should have the ability to perform all such conditions. If he could not or would not have performed the substantial equivalent for which the defendant's performance was agreed to be exchanged, he is given no remedy in damages for the defendant's nonperformance or repudiation.
4 A.L. Corbin, Corbin on Contracts Sec. 978 (1951). See also Hospital Mortgage Group v. First Prudential Development Corp., 411 So.2d 181, 183 (Fla.1982); Record Realty, Inc. v. Hull, 15 Wash.App. 826, 552 P.2d 191, 196 (1976); Petersen v. Inter-Mountain Capital Corp., 29 Utah 2d 271, 508 P.2d 536, 538 (1973).
The record fails to disclose that the trial court instructed the jury in any way that in order for Chen to recover there not only must have been a breach of the contract by Advantage, but also...
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