Baird v. Wendt Enterprises, Inc.

FLEMING, J.

The Baird syndicate, the seller, sought damages against Wendt, the buyer, for breach of a contract to purchase a leasehold interest in real property in Hawaii. Wendt counterclaimed for damages for breach of the same contract. The trial court found both parties in default under the contract and refused to award damages to either, a decision which both have appealed.

We affirm the judgment, although our view of the transaction differs somewhat from that of the trial court.

The facts: on June 10, 1960, Baird agreed to sell, and Wendt to buy, a 60-year leasehold on property at Waikiki, together with plans and specifications for a high-rise apartment-hotel for whose construction Baird had secured a building permit on November 23, 1959. The parties agreed to a closing date of November 1, 1960, at which time Baird was to furnish a title report and an effective building permit. During negotiation of the contract the Baird syndicate informed Wendt that its building permit, issued two days before the adoption of a new building code on November 25, 1959, was renewable for .a maximum period of 15 months, within which

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time substantial construction under the building permit would have to begin in order to prevent its expiration, and that building heights in the area for projects constructed under future permits would be restricted by the new code.

Although the contract provided for a close of escrow on November 1, 1960, well within the life of the building permit and its renewal period, the parties did not maintain that schedule but from time to time extended the closing date, on the final occasion from January 10 to March 10, 1961. Sometime in January 1961 Baird reminded Wendt that the building permit would expire February 22 unless substantial construction on the project began before that date. On February 7 Baird furnished Wendt with a title report. But throughout January, February, and March neither party took any steps to arrange for the start of construction, with the result that on February 22 the existing building permit expired without the possibility of further renewal, the escrow was never closed, and this litigation ensued.

Baird filed its appeal two days late, and since compliance with the time requirements for a civil appeal is mandatory, we have heretofore dismissed Baird’s appeal.