It is clear from the record that plaintiff was not content to proceed within the four corners of the agreement. She sought, as a condition precedent to settlement of the contract of sale, a promise on the part of defendant's agent to assume responsibility for satisfying any requirements of the District of Columbia for the additional period of ninety days.
The defendant contends that the specific provision of the contract theretofore quoted relates to notices by the District to the responsible party concerned and not to an inspector's memorandum inspired by plaintiff's premature request, as 'owner', for an occupancy permit. In support of this contention, defendant cites the case of Dodek v. Hunter, D.C.Mun.App., 178 A.2d 915; also Kraft v. Lowe, D.C.Mun.App., 77 A.2d 554. Plaintiff contends that notations by the Government without official notice to defendant, if prior to settlement, required compliance by defendant. A determination of those contentions is not required in deciding whether plaintiff is entitled to specific performance.
The Court finds that the notice of May, 1962, was duly served on the defendant and was outstanding in part at the time of the contract and date of settlement. The court further finds that there was no notice to defendant of any other requirement as to the property, save that which was verbally stated to the defendant's agent, at the settlement, by the plaintiff.
The question for determination as to the specific performance action is whether the plaintiff has shown that she was ready and willing to perform in accordance with the valid contract of August 21, 1962 -- not a readiness or willingness to do so conditioned upon a supplemental agreement extending for ninety days the period of responsibility. This the plaintiff has failed to do. The court finds that the plaintiff was not ready or willing to perform in accordance with the terms of the agreement but sought as a condition precedent to doing so a supplemental agreement by the defendant-agent acknowledging liability for compliance with any notices coming within ninety days after settlement. The court concludes that the plaintiff was not entitled to condition her readiness and willingness to comply with the contract and that by so doing plaintiff forfeited her right to specific performance of the contract. The court finds that the defendant-agent's departure from the settlement office, after the settlement had been conditioned by the plaintiff and after defendant-agent had filed with the settlement company the deed from the defendant to the plaintiff (which was still with the settlement agency at the time of trial), did not under the circumstances constitute a breach on the part of the defendant-agent. The plaintiff was required to make proper tender in accordance with the terms of the contract in order to prevail in her action for specific performance. The court finds that the plaintiff did not do so, nor does the record show ability on the part of the plaintiff to comply.
The court finds that the defendant had not corrected in toto the conditions noted in the citation of May, 1962; hence plaintiff had a right to refuse to consummate settlement and then had a right to look to the defendant for such damages, in a law action, as the plaintiff may have sustained. The plaintiff could have elected to complete the settlement, and then, under the survival provision of the contract, could have looked to the defendant for such damages as she may have sustained. Neither of these courses did plaintiff elect to take, but sought to exact a supplemental agreement from the defendant-agent whereby the latter would have become liable to the plaintiff for correction of any requirements of the District for a period of ninety days after settlement and delivery of deed. This was made a condition precedent to the execution of the settlement. Plaintiff's failure to settle without such concession by the defendant requires the court to find that the plaintiff was not ready and willing to go forward under the contract -- hence not entitled to specific performance.
For the foregoing reasons the complaint for specific performance must be denied, without prejudice to such action as the plaintiff may be advised to bring with reference to damages, if any, that she may have suffered as a result of any breach of the provision quoted hereinbefore. The plaintiff is entitled to return of deposit, inasmuch as defendant had not complied with District requirement of May, 1962, in toto.
The foregoing memorandum shall constitute findings of fact and conclusions of law in this case.
It is therefore, this 15th day of October, 1964,
Ordered That the complaint be, and the same is hereby, dismissed; and it is
Further ordered That defendant return to plaintiff the deposit of $ 1,000.
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