Bell v. Elder

Brief Fact Summary.

The supplement agreement to the parties land purchase agreement provided that Plaintiffs must obtain a building permit and Defendants must furnish culinary water to the land. When neither party performed, Plaintiffs sued Defendants for breach of contract. The trial court ruled in favor of Defendants. Plaintiffs appealed.

Synopsis of Rule of Law.

Where opposing parties’ performance is due concurrently, neither party may claim a breach by the other until the party claiming the breach tendered performance of its concurrent obligation.

Facts.

The Bells (Plaintiffs) contracted to buy a plot of undeveloped land from the Elders (Defendants). The supplement agreement to the contract provided that Plaintiffs must obtain a building permit and that Defendants must furnish culinary water to the land. The agreement did not specify a time for the completion of either. Neither party performed its promise. Plaintiffs sued for breach of contract on the grounds that Defendants had not supplied culinary water. The trial court found in favor of Defendants. Plaintiffs appealed.

Issue.

Whether a party may claim a breach by the other party before tendering performance of its own concurrent obligation where opposing parties’ performance is due concurrently.

Held.

No. The trial court’s ruling is affirmed. Where opposing parties’ performance is due concurrently, neither party may claim a breach by the other until the party claiming the breach tendered performance of its concurrent obligation.

Discussion.

Where there is no indication in a contract of the intended order for opposing parties’ performance, performance is due concurrently. And neither party may claim a breach by the other until the party claiming the breach tendered its own performance of its concurrent obligation. In the case at bar, the contract does not specify an order in which the promises of the parties—obtaining a building permit and supplying water to the land—were to be completed. Accordingly, the promises were to be performed concurrently. Thus, Plaintiffs are not permitted to claim breach due to Defendants’ failure to supply water until they obtain a building permit. Plaintiffs did not obtain a building permit so their claim of breach must fail.