NEW YORK BRONZE POWDER CO. V. BENJAMIN ACQUISITION CORP.
716 A.2d 230 (1998)
NATURE OF THE CASE: This was a dispute over whether a provision in a contract was a
condition or a promise or both.
FACTS: New York Bronze (P) entered into an agreement with Benjamin Acquisition Corp. (D)
for D to purchase from P assets of the business then known as Benjamin Rich Company. The
price was to be $4.5 million with assumption of certain Rich liabilities. Shortly before
closing, D expressed concern over the valuation of certain assets. A modification of the
purchase agreement was reached with $350,000 of the purchase price to be deferred and taken
in a nonnegotiable note to P for $350,000. Under that agreement, D undertook to prepare a
balance sheet to be delivered to P no later than June 14, 1990 that if the audited balance
sheet reflected a net worth of less than $4.5 million, D was entitled to a dollar for dollar
credit on the $350,000 deferred purchase price. The deal was closed under the modified
agreement but the accounting firm never completed its audit. D never made nor tendered any
cash payment on the note. P sued D for nonpayment on the note and breach of the modified
asset purchase agreement. P got the verdict and D appealed. The Court of Special Appeals
held that the italicized portion of the note (page 422 Calamari 3rd) created a condition,
the nonoccurrence of which extinguished D's obligation to pay the $350,000 or any part
thereof; as P had not surrendered the note they were not entitled to payment. P then
appealed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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