Empire Properties v. Equireal

OPINION BY WIEAND, J.: Filed: April 4, 1996 This action was brought by a disappointed purchaser of real property who alleged that the vendor had breached a written agreement of sale, which had been orally modified to extend the date of performance, by repudiating the agreement and selling the land to another buyer. The purchaser, Empire Properties, Inc., filed suit against the vendor, Equireal, Inc., in which Empire alleged that Equireal's breach of the contract entitled it to recover damages for loss of its deposits, pre-closing expenses and lost profits. Following a jury trial, a verdict was returned in favor of Empire in the amount of $250,000.00 for the loss of its deposits, plus $16,028.15 in pre-closing expenses. No damages were awarded for lost profits. The verdict was then molded by the trial court to reflect the award of pre-judgment interest at the rate of 6% per annum. Post-trial motions were filed by Equireal, and were denied by the trial court on January 5, 1995. Thereafter, judgment was entered on the verdict and Equireal filed the present appeal. On appeal, Equireal asserts that: (1) an alleged oral modification of a written agreement for the sale of land, which purports to extend the time of performance, is unenforceable under the Statute of Frauds; (2) such an oral modification of a written contract is unenforceable absent valid consideration; (3) in the absence of proof by Empire that Equireal waived provisions in the contract making time of the essence and prohibiting oral modification, Equireal was entitled to judgment notwithstanding the verdict; and (4) the trial court erred in instructing the jury regarding Empire's burden of proving the existence of an oral modification of the written agreement and its entitlement to recover damages resulting from Equireal's alleged breach of the agreement. We will consider these claims seriatim.