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EVANS PRODS. CO. v. SWANGER

July 24, 1973

EVANS PRODUCTS COMPANY
v.
J.H. SWANGER et al.


Troutman, District Judge.


The opinion of the court was delivered by: TROUTMAN

Troutman, District Judge.

 In this action brought by a lessee-optionee against a lessor-optionor, plaintiff is seeking specific performance of a lease agreement containing an option to purchase the leased premises or, in the alternative, is seeking damages for breach of said agreement. Before the Court is defendants' motion to dismiss the complaint, which we shall treat as a motion for summary judgment. *fn1"

 Paragraph 2 of the agreement contains the option to purchase and provides as follows:

 
"2. Tenant is given the option to purchase the demised premises at any time prior to September 30, 1967 for One Hundred Thirty Thousand ($130,000.00) Dollars and, if Tenant exercises Tenant's option to renew this lease for the second five-year term, at any time after September 30, 1967 and before September 30, 1972 at a price of One Hundred Forty Thousand ($140,000.00) Dollars, upon the following terms and conditions :
 
"(a) Tenant shall give landlord notice of intention to exercise the option to purchase at any time during the term of this lease and any extension or renewal thereof prior to September 1, 1972, and at the same time shall pay to landlord ten per cent (10%) of the purchase price as a down payment which payment shall be forfeited to landlord in case of default by tenant in the performance of tenant's contract to purchase.
 
"(b) Within three (3) months from the date of said notice but not later than September 30, 1972, tenant shall pay the balance of the purchase price to landlord who shall execute and deliver a deed of conveyance for the property to tenant or tenant's nominee (collectively hereafter referred to as 'Purchaser') and at the same time deliver possession of the demised premises.
 
* * *
 
"(d) The conveyance shall not be made less than thirty (30) days after the effective date of the notice."

 On June 14, 1967, plaintiff's predecessor in interest and defendant entered into an addendum to the lease agreement, renewing the lease for an additional five-year period and increasing the purchase price to $140,000.00. In addition, the addendum provided:

 
"(b) All other provisions of the original lease and addendum thereto shall remain the same except as modified above." *fn2"

 By a series of assignments and mergers not relevant here, the plaintiff ultimately obtained a leasehold interest in the demised premises. On September 22, 1972, plaintiff notified defendants in writing of its exercise of the option to purchase and tendered an amount in excess of ten per cent of the purchase price as a down payment. Defendant refused to accept the tender and still refuses to make the conveyance.

 Plaintiff alleges that its written notice of September 22, 1972, was a timely and proper exercise of its option to purchase. Thus, the issue before the Court is whether, under the terms and conditions of the lease agreement, plaintiff's written notice of September 22, 1972, constituted a ...


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