Drake v. Wickwire

795 P.2d 195 (Alaska 1990)

 

RULE:

In order to constitute a repudiation, a party's language must be sufficiently positive to be reasonably interpreted to mean that the party will not or cannot perform. Mere expression of doubt as to his willingness or ability to perform is not enough to constitute a repudiation, although such an expression may give an obligee reasonable grounds to believe that the obligor will commit a serious breach and may ultimately result in a repudiation. However, language that under a fair reading amounts to a statement of intention not to perform except on conditions which go beyond the contract constitutes a repudiation.

FACTS:

A client followed his attorney's advice to sell property to buyers other than those which the client had entered into an earnest money sales agreement after the attorney received information that the buyers there was an agreement with might not be able to perform on a particular date. After the sale, the agent for the buyers with whom the client had the agreement sued the client for his real estate commission. Summary judgment was granted to the agent because the client had sold the property before the time in the agreement had expired for the buyers with whom the client had the agreement to tender payment, preventing performance under the agreement. The client filed an action against the attorney.

ISSUE:

Was summary judgment for the attorney proper?

ANSWER:

No

CONCLUSION:

The Court held that although the client failed to present expert testimony regarding the attorney's breach of duty, the attorney was negligent as a matter of law because he did not act reasonably in treating the agent's ambiguous comments regarding the buyer's potential lack of performance on a particular date as a repudiation. The court remanded the case for further proceedings.

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