". . . . "6. Facts showing that even if the condition were performed the promise would not have been kept; and that for this reason only the condition had not been performed, Miller v. Schwinn, 113 F.2d 748 (CA DC) the court held that no action could be maintained for breach of a condition to convey certain properties free from encumbrances when it could be affirmatively shown that the promisor would not have performed even if the condition had been satisfied; . . ." It follows, as the trial court held, that, once the closing date set in the commitment agreement had been passed, the respondent was excused from performance and entitled to rescind.