Am-Cal Investment Co. v. Sharlyn Estates, Inc

In Am-Cal Investment Co. v. Sharlyn Estates, Inc. (1967) 255 Cal.App.2d 526, the only admissible evidence was that plaintiff's lender did not have the financial ability to effect the necessary loan to the plaintiff at the time performance was due. (Id. at pp. 534, 541, 543 evidence was "practically uncontradicted".) Plaintiff then sought to show that a second lender, from whom plaintiff was able to obtain a loan commitment at the time of trial -- based on a joint application by plaintiff and others to whom plaintiff assigned part of his interest in the property -- would have made the same loan at the earlier time when performance was due. But the testimony was that, while the lender would have made the same loan earlier, it probably would not have made a loan commitment at the earlier time if plaintiff had applied individually. (Id. at pp. 537-538, 544.) The court's not-surprising conclusion was that plaintiff did not establish its financial ability at the time set for performance.(Id. at pp. 544, 546.) The court's reference to a "hypothetical loan" was in the context of plaintiff's claim (which the court rejected) that a buyer seeking specific performance "need prove ability to perform only at the time of trial, and that such proof may be introduced in the form of a hypothetical loan which could have been secured by the buyer following the seller's wrongful repudiation." (Am-Cal, supra, 255 Cal.App.2d at p. 545.) Am-Cal further observed that the buyer's financial ability "may be proved by showing the purchaser had liquid assets, property which could be sold and the proceeds used as collateral for a loan, or an actual loan commitment ...." (Am-Cal, supra, 255 Cal.App.2d at p. 546.) The court explained that a "purchaser without funds of his own may show that he was ready and able to pay the purchase price because he had made arrangements to borrow the required funds from a lending institution or from a third party, but if he relies upon the negotiation of a loan from a third party, the buyer must prove: (1) That the third party was legally bound by contract to advance the funds; (2) '. . . that the party offering to advance the purchase price has the financial ability so to do . . . ." (Id. at pp. 539-540.)