Brief Fact Summary. A contract between two parties contained concurrent conditions, one to be satisfied by each party. Neither party satisfied their respective condition.
Synopsis of Rule of Law. A party cannot place another party in breach if they themselves have not tendered their own performance.
Issue. If a party does not adequately tender his own performance can that party claim that another non-performing party is in breach?
Held. No. The court agreed with the district court that the Appellant never "made an adequate tender of its own performance." Concurrent conditions were involved in this case. The Appellant had to deposit the insured first mortgages and Western had to deposit its stock simultaneously. "Neither party could place the other in breach for failure to perform without a tender of its own performance." The definition of tender is a "a readiness and willingness to perform in case of the concurrent performance by the other party, with present ability to do so, and notice to the other party of such readiness."
Discussion. This case demonstrates how courts require a plaintiff to tender performance prior to a breach of contract action can be sustained.