Property

Brief

Niernberg v. Feld

Procedural History:

• Lower court ruled in favor of the plaintiff (Feld).
• Appealed.
• Affirmed.

Facts:

• The Niernberg’s own real estate for which they entered into an agreement with Mr. Feld for the sale.
• They agreed on a purchase price of $27,000 with a $1,500 deposit.
• It was agreed that if payment was not made or tendered as provided, then the money paid and receipted for was to be held as liquidated damages, and in either case, both purchaser and seller were to be released from all obligations.
• Prior to May 1, the Feld’s decided they could not go through with the sale.
• Their attorney notified the sellers and apprehension as to the matter of a return of the deposit caused them to arrange for a conference.
• The sellers were not present but their attorney was and it was orally agreed that the sellers would keep the deposit and if they were able to sell the home for equal or greater value then they would return it to the Feld’s. But if the price of sale was lower they would subtract the difference from the deposit and if any was less it would be returned to the Feld’s.
• The sellers denied the meeting or oral agreement took place prior to May 1 and sold their property 90-days later for equal or greater value but refused to return the deposit.

Issue:

• Is there a binding contract requiring the Niernberg’s to return the deposit?

Holding:

• Yes. Affirmed for Feld.

Reasoning:

• The court addresses whether or not the recession must be in writing.
  • In accordance with the statute of frauds
• The statute of frauds however concerns the making of contracts only and not the recession.
• The court found that there was a promise for a promise involving the release of each party from further performance, and this mutual consideration is sufficient to support the agreement.