## Facts

- A restaurant business and its real property in Joplin, Missouri were listed for sale; Buyers agreed to purchase for $290,000 under a written contract.
- Hamilton later assigned his interest to Paragon Ventures, L.L.C., but remained personally liable under the contract.
- The contract included a financing contingency requiring Buyers to (1) use reasonable diligence to obtain specified conventional financing and (2) provide Seller a written loan commitment within 30 days; absent that commitment, the contract would automatically terminate and earnest money would be returned.
- Buyers obtained financing from a local bank on terms that did not match the contract’s stated loan terms and did not provide Seller a written loan commitment within 30 days; Buyers did not seek alternative financing.
- After the 30-day period passed, the parties continued to act under the contract: they executed amendments extending the closing date, Seller granted a purchase-price credit, Buyers took possession to begin cleaning, and Seller began transferring utilities.
- Shortly before closing, Buyers refused to close, citing concerns about missing fixtures and existing tax liens, not financing.
- Seller later resold the property to another buyer about 11 months after the breach for $235,000.
- Seller sued for breach of contract and recovered damages after a bench trial; Buyers appealed, disputing liability and damages.

## Issues

1. Whether Buyers’ conduct after the financing-contingency deadline constituted a waiver of the contract condition requiring a written loan commitment within 30 days.
2. Whether the property’s resale price about 11 months after the breach was substantial evidence of fair market value at the time of breach for purposes of calculating expectation damages.

## Decision

- The appellate court affirmed the judgment for Seller.
- Buyers waived the financing-contingency protection by continuing to perform and accept benefits under the contract after the contingency deadline without invoking termination based on the missing written loan commitment.
- The resale price obtained in a later voluntary sale about 11 months after breach constituted substantial evidence of the property’s fair market value at the time of breach.
- The trial court’s damages award based on the contract-price/market-value differential, plus allowable related expenses, was supported by the evidence under the standard of review for court-tried cases.

## Legal Principles

- A contractual condition benefiting a party may be waived when that party clearly, unequivocally, and decisively shows an intentional relinquishment of the condition’s benefit.
- Post-deadline conduct inconsistent with reliance on a financing contingency—such as extending closing, accepting concessions, and taking possession—can support a finding that the contingency was waived.
- For breach of a real-estate sale contract, expectation damages are generally measured by the difference between the contract price and the property’s fair market value at the time of breach, plus incidental damages where proven.
- A subsequent voluntary sale to a willing buyer within a reasonable time after breach (including just under a year) may be substantial evidence of the property’s fair market value at the time of breach, absent compulsion or distress conditions affecting the price.

## Conclusion

The court held that Buyers’ continued performance after the financing-commitment deadline waived the financing contingency, and it approved the use of a later, voluntary resale price obtained about 11 months after breach as substantial evidence of fair market value to support an expectation-damages award.


Crabby’s, Inc. v. Hamilton, 244 S.W.3d 209 (Mo. Ct. App. 2008)