COMMERCIAL LAW. CONTRACTS. SPECIFIC PERFORMANCE. PLEADINGS. Plaintiff, a corporation, brought an action for specific performance of a $2.2 million contract to purchase two mortgage loans from the defendant LLC. In moving to dismiss for failure to state a cause of action based upon documentary evidence, the defendant contended that no binding contract was formed because the parties did not intend to be bound until the loan agreement had been signed and delivered by both parties. In opposition, plaintiff submitted evidence that its president signed three copies of the loan sale agreement and returned them, as instructed, to the defendant’s attorney, and wire transferred the down payment the next day. Order granting defendant’s motion is reversed (3-2), and motion denied. The documentation submitted on the motion raised issues of fact as to whether plaintiff’s claim for specific performance is viable, regardless of the fact that the defendant did not countersign the contract, because: (1) plaintiff executed and returned the contract as instructed; (2) plaintiff wire transferred the down payment the next day; and (3) instead of informing the plaintiff that there was no contract and returning the down payment immediately, the defendant retained the down payment for over two weeks and did not communicate or contact the plaintiff until it gave notice that it was not executing the contract.

PMJ Capital Corp. v. PAF Capital, LLC. Decided 8/14/2012, Court of Appeals

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