Opinion
June 21, 1943.
Action by the seller to compel specific performance of a contract for the sale and purchase of real property. Judgment in favor of plaintiff reversed on the law and the facts, without costs, and judgment directed in favor of defendants on their motions for judgment on the plaintiff's case, and on their counterclaim, without costs. Findings Nos. 14, 15, 16 and 17 are reversed, and all conclusions of law disapproved. All other findings affirmed. All defendants' proposed findings and conclusions, including those adopted by the trial court, are found, approved and adopted. When the parties contracted they intended that the purchasers would get land which could be built upon to at least one third of its area, either as a whole or in lots or plots. This has not been possible under the various regulatory resolutions adopted by the village. The conduct of the parties shows conclusively that after the law date set for the delivery of the deed they toiled toward accomplishing the desired end, that is, to obtain legal permission to build upon an area as extensive as that which was within the contemplation of the parties. Under these circumstances, it is inequitable to decree specific performance.
Johnston, Adel and Taylor, JJ., concur;
The failure of defendants to appear on the closing day and their neglect to exercise the option within a reasonable time thereafter, as found by the Trial Judge, justify the judgment for plaintiff.