Friday, May 29, 2009

Seller's contradictory evidence about contract terms leads to win for Buyer; Seller refused to close on real property after contract was signed

WILLIAM A. BAKER, II v. HOMER J. JOHNSON, SR. (Tenn. Ct. App. January 26, 2009).

Shortly after the parties entered into a contract for the sale of a piece of real estate, the seller refused to transfer possession and informed the buyer that he did not intend to close on the property. The buyer filed suit for breach of contract and demanded specific performance. The seller denied that the contract of sale was valid or enforceable and presented a number of different and inconsistent allegations to support his contention. The trial court granted summary judgment to the buyer. We affirm.

Opinion may be found at the TBA website:

"Such contradictory assertions not only destroy the credibility of the person making them, but they force the trial court to disregard them as a matter of law.  Our courts have long held that mutually contradictory statements by the same witness are “no evidence” of the fact sought to be proved. Another expression of the same idea is that “[c]ontradictory statements of a witness in connection with the same fact have the effect of cancelling each other out. However, the cancellation rule applies only if the allegedly contradictory statements are unexplained or if neither statement can be corroborated by other competent evidence." Id.

"Finally, we note that even if Mr. Johnson had succeeded in establishing the authenticity of the documents he submitted, Mr. Baker would still be entitled to prevail.  It is a well-established tenet of contract law that once a party has formed a contract by accepting an offer, he cannot subsequently vary the terms of that contract by presenting a counter-offer to the other party.  Both versions of the Purchase and Sale Agreement contain Mr. Johnson’s signed acknowledgment that the buyer’s offer was accepted at 2:00 p.m. on July 26, 2005.  The signature on the purported counter-offer bears the same date, but recites a time of 4:30 p.m.  Thus, even if such a counter-offer had been presented to Mr. Baker, it would have had no legal effect." Id.