332
Chapter 18
Breach of Contract and
Remedies
Case 18.2
N.Y.Sup.App.Term,2010.
B-Sharp Musical Productions, Inc. v. Haber
— N.Y.S.2d —-, 2010 WL 597196 (N.Y.Sup.App.Term), 2010 N.Y. Slip Op. 20049
Supreme Court, Appellate Term, New York,
Plaintiff and defendant James Haber entered into a contract pursuant to which plaintiff agreed to provide a designated
16-piece band on a specified date to perform at Mr. Haber’s son’s bar mitzvah. Mr. Haber was to pay approximately
CHAPTER 18: BREACH OF CONTRACT AND REMEDIES 333
$30,000 for the band’s services. The contract contained a liquidated damages clause stating, in pertinent part, “If [the
Congress Fin. Corp.,
4 N.Y.3d 373, 379 [2005] ), Civil Court correctly determined that the subject provision of the
contract is an enforceable liquidated damages clause, not an unenforceable penalty (
see Truck Rent-A-Ctr. v. Puritan
Farms 2nd,
41 N.Y.2d 420 [1977] ). “The clause, which in effect uses an estimate of [plaintiff’s] chances of re-booking
the [band] as the measure of [its] probable loss in the event of a cancellation, reflects an understanding that although
the expense and possibility of re-booking a canceled [performance] could not be ascertained with certainty, as a
issue as to whether the clause violated the statutory type size requirement (
see Tsadilas v. Providian Nat. Bank,
13
A.D.3d 190 [2004],
lv denied
5 N.Y.3d 702 [2005];
cf. Gulf Ins. Co. v. Kanen,
13 A.D.3d 579 [2004] ).
[3][4] We agree with defendants that the complaint should be dismissed as against Mrs. Haber. The contract was
signed only by Mr. Haber, and no triable issue exists as to whether Mr. Haber executed the contract as Mrs. Haber’s
agent. We note in this connection that an agency relationship may not be implied or inferred solely by reason of the
Case 18.3
N.C.App.,2009.
Drake v. Hance
673 S.E.2d 411
334 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
Carolina (“the street address”). The property was described in the contract as “# 15 Legacy Lake (ALL of the property in Deed
Reference: Book 1137, Page 244, Union County).” Although the contract only specifically mentioned the purchase of lot 15, the
recorded deed described both lot 15 Legacy Lake and lot 11, Legacy Lake. On 16 June 2005, the parties entered into a new
contract for the purchase of the same real property since the parties increased the purchase price and plaintiffs agreed to pay the
closing costs. The new contract included the street address and the property was described in the same manner as the first
mistakenly conveyed to defendants, because they intended only to convey lot 15. Plaintiffs alleged that the conveyance resulted
from a mutual mistake of fact and requested the court reform the deed to reflect the intended transaction between the parties. The
defendants denied any mistake of fact regarding the deed involved in the transaction.
Prior to trial, defendants filed a motion
in limine
objecting to the trial court’s consideration of extrinsic evidence to reform the deed.
The court denied defendants’ motion and admitted extrinsic evidence to ascertain the intentions of the parties. The trial court
[1][2][3][4] The defendants argue that the trial court erred by allowing plaintiffs to present evidence which directly contradicted and
modified the sales contracts previously made between the parties where all of the documents executed prior to the sale clearly
described the property to be conveyed. We disagree.
The parol evidence rule is not a rule of evidence but of substantive law…. It prohibits the consideration of evidence as to anything
which happened prior to or simultaneously with the making of a contract which would vary the terms of the agreement.
rule prohibits the admission of parol evidence to vary, add to, or contradict” the terms of an integrated written agreement,
Hall v.
Hotel L’Europe, Inc.,
69 N.C.App. 664, 666, 318 S.E.2d 99, 101 (1984), though “an ambiguous term may be explained or
construed with the aid of parol evidence.”
Vestal v. Vestal,
49 N.C.App. 263, 266-67, 271 S.E.2d 306, 309 (1980).
In the present case, the contracts for the purchase of the home included the street address and described the property as “# 15
Legacy Lake” but also included deed references describing both lots 15 and 11: “[a]ll of the property in Deed Reference: Book
convincing that the deed, as recorded, did not reflect the agreement between the parties due to a mutual mistake caused by a
drafting error, a deed can be reformed.
Parker v. Pittman,
18 N.C.App. 500, 505, 197 S.E.2d 570, 573 (1973).
See also Durham v.
Creech,
32 N.C.App. 55, 58-59, 231 S.E.2d 163, 166 (1977).
In the present case, the closing attorney improperly prepared the deed due to an error in his office. The court found that repeated
attempts were made to contact the defendants to correct the error but were unsuccessful. More importantly, the defendants, at that