I do not agree that assumption of the existing lease of the seller was not a condition precedent to performance under the contract of sale.
However, I do agree that in Hayward's response to VR's request for admissions, Hayward admitted that he "refused to complete the sale of the business known as Darveaux Confectionaire after executing a written agreement to do so." Paragraph 3(D) of the brokerage agreement provides that the fee shall be paid if the "Owner fails or refuses to complete a sale, lease, trade or their disposition of all or any part of the business after entering a written agreement to do so."
Consequently, I concur in the result reached by the majority.