Ready, Willing and Able
A real estate broker sued our client, a corporation that owns a large warehouse, alleging that the broker earned a commission when it brought a buyer who was ‘ready, willing and able’ to purchase the property on terms that were acceptable to the owner, even though the parties never actually closed title (let alone signed a contract of sale). We moved to dismiss the complaint, arguing that the email exchanges between the lawyers for the buyer and seller – and the many proposed changes to the contract – constituted documentary evidence that there was never a meeting of the minds on the material terms. The trial court denied our motion, holding that whether the term sheet prepared by the broker constituted an agreement on the material contract terms was an open issue of fact to be resolved at trial. A unanimous Second Department reversed the trial court and dismissed the law suit. In its succinct decision, the Appellate Division noted that “the parties’ submissions, which included printouts of emails and drafts of contracts, established that the defendants and the prospective purchaser did not come to a meeting of the minds as to the essential terms of the sale and, thus, disproved the plaintiff’s allegation that it procured a buyer who was ready, willing, and able to purchase the property.”
This case was the subject of our inaugural Newsletter. Click on the link below to read the actual decision.