William Libby, and Bernard Libby, T/a Libby Bros. v. Trako Builders, Inc.

BURGER, Circuit Judge.

Appellants made a contract with Trako Builders, Inc., appellee, to sell 36 building lots on which Trako later erected dwellings. The contract provided that settlement was to be made “as soon as grading is finished.” The contract further provided, “Streets and alleys [are] to be cut to grade and lots to be graded no more than 3 feet above these grades.”

Pursuant to a prior contract with appellants a third party contractor was engaged to do the grading. Settlement including delivery of deed was made after appellants advised Trako grading was complete.

Thereafter Trako…