CONCURRENT OWNERSHIP; TENDER

A husband entered into a contract for the sale of land he owned with his wife as tenants by the entirety intending to close after their divorce was final and he became the sole owner. The wife never signed the contract; the husband never purported to be signing for her as her agent. The seller subsequently decided he was through with the deal and returned the earnest money to the buyers (unsolicited by the buyers). The buyers have filed suit seeking specific performance and/or damages for detrimental reliance. I am trying to argue on behalf of the defendant that maybe there was never a contract because the wife did not sign.

Two things occur to me. First, if the contract was set up for signature by both spouses and only the husband signed, there is an argument that there was no contract. Take a look at Carr v. Ott, 277 S.W.2d 419 (Tenn. App. 1954). Second, to enforce the contract the buyers would have had to tender performance by the closing date if the contract said time was of the essence or within a reasonable period of time thereafter if it did not. Tender would require showing up with cash or good check in hand and offering it physically. Beale Street Development v. Miller, 28 TAM 19-17 (Tenn. App., Mar. 20, 2003). One caveat, however, is that tender is excused if a party makes clear by his or her words or actions prior to the closing date that he or she doesn't intend to close.