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Plaintiff moved for partial summary judgment and demurred to defendants’ counterclaim. OVERVIEW: Defendants sought to apply equitable principles in seeking pacific performance of the contract. The disposition of the instant motion for partial summary judgment and demurrer was controlled, at this stage of the proceedings, by defendants’ assertion that they were entitled to equitable relief in that they had fully performed and called for settlement.
The court found that although the doctrine of mutuality to remedies may be alive and well in Virginia in actions at lava for damages, that was not the case where, despite a lack of mutuality of remedy at the time the contract was termed, complete performance may, if shown, afford a party specific performance of the contract for the sale of and. Accordingly, the court denied the motion for partial summary judgment and overruled the demurrer without prejudice to raise the issue of want of mutuality and consideration at trial.
OUTCOME: The court denied the motion for partial summary judgment and overruled the demurrer without prejudice Opinion of judge horned 13. Default: If Buyer fails to comply vivid this contract, Buyer will be in default, and Seller may either (a) enforce specific performance, seek such Other relief as may be provided by law, [*505] or both, or (b) terminate this contract and retain he entire deposit specified in paragraph AAA as liquidated damages, thereby releasing both parties from this contract.
If, due to factors beyond Seller’s control, Seller fails within the time allowed to make any non-casualty repairs or deliver the Commitment, the Closing Date will be extended as necessary. If Seller fails to comply with this contract for any other reason, Seller will be in default and Buyer may, as Buyer’s sole and exclusive remedy, terminate this contract and receive from Seller the deposit less any changes to plan, specifications, decorative finish schedule, or change orders, as agreed liquidated damages, hereby releasing both parties from the contract. Duality of contract as now commonly understood should properly be taken to he sufficiently complied with when there are promises on each side that something shall be done tort the benefit of the other side furnishing therefore considerations by each party, although they may relate to different terms of the contract and may be conditioned upon performance by the other party. In plainer language, “neither part/ is bound unless both are bound. Thus, “[i]f it appears that one party was never bound on its part to do the acts which form the consideration for the remises of the other, there is a lack of mutuality of obligation and the other party is not bound. ” 505 Bushman v. Berne & Barry Invest. , LLC, 69 Va. Cirri. 375 (Va. Cirri. CT. 2005) CASE COMMENSURATELY POSTURE: Defendant company filed a demurrer to plaintiff trustee’s breach Of contract action; the company claimed, inter alai, that the trustee lacked authority to sue it for the difference in the amount the company bid at a foreclosure sale and the amount the trustee actually received, and that the contract lacked mutuality.
OVERVIEW: After a foreclosure sale of a condominium where the company was he highest bidder, the parties entered into a purchase contract. Thereafter, the company notified the trustee that it would not close on the condominium. Consequently, the trustee conducted a second foreclosure sale. Because the property was sold for less than the company had originally bid, the trustee sued the company for breach to contract and sought damages, inter alai, for the difference between the original hid and the later foreclosure sale price.
The court found that the “power of sale” in the deed of trust necessarily implied the power to sue the company for breach of the contract of sale, The company presented o authority for the proposition that the trustee lacked authority to sue alone to enforce the foreclosure sale contract, However, because the contract provided that the company’s sole remedy in the event of the trustee’s default was a refund of its deposit, the trustee freed himself of any obligation to perform his contract with the company.
Consequently, the contract lacked mutuality and could not be enforced. OUTCOME: The demurrer was overruled as to the trustee’s authority; it was sustained as to the lack of mutuality in the agreement. [*378] 3. Lack of Mutuality Of Contract The last issue presented is whether the Memorandum of Sale executed between Mr.. Bushman, as trustee, and Berne, as foreclosure sale purchaser, lacked mutuality because the contracts limitation clause negates any remedy against the trustee should he elect not to perform the foreclosure sale agreement.