Commercial Law Keyed to Lopucki
In Re Carter’s Claim
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Plaintiff and its six subsidiaries were available for purchase. Defendant began negotiations for the purchase of the company. The parties entered into a written agreement in which Defendant purchased all the issued and outstanding capital stock of Plaintiff and its subsidiaries. The total purchase price was $2,100,00.00 of which amount $187,863.60 was set aside to indemnify the buyer against the liabilities of sellers by reason of any and all provisions of this agreement. Defendant presented a claim against the escrow fund for $69,998.42 as a liability of the seller under the agreement. The arbitration was submitted to a judge by the sellers. The arbitrator awarded to the buyer $3,182.88 and buyer’s motion to correct the arbitrator’s award was dismissed. Defendant appeals, contending that the financial condition on the date of purchase was less favorable than that reflected in the company’s financial statement and therefore he is entitled to reimbursement out of the escrow fun d for the amount of the deficiency. Plaintiff denies the reduction in the financial condition and even if there were the Defendant has no right to reimbursement under the agreement unless the reduction resulted from occurrences outside the ordinary course of business, which caused a materially adverse change in the company’s financial condition. The Defendant contends the provision constituted a warranty on the seller’s part that the financial company was not less favorable than demonstrated by the financial statement, and that the Plaintiff breached this warrant. Plaintiff contend that the provision was a condition and the buyer had the right to refuse a consummation of the sale if the condition was not fulfilled, when the Defendant elected to consummate the sale it waived the condition.
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