The original owners of the property at issue in this case had a contract with A.B./Wildwood Limited Partnership, which had agreed to purchase the property. Contrary to the terms of the agreement, the original owners sold the property to WBT. That sale by the original owners, assuming they were bound by the actions of their agent and assuming the consideration was not indefinite, constituted an anticipatory breach of the agreement. Once a party has committed an anticipatory breach, the other party is excused from further performance. Shirley v. Lin, 548 So.2d 1329, 1334 (Ala. 1989). See, also, Thomas v. Smoot, 2 Ala. App. 407, 56 So. 1 (1911). WBT, as assignee, is subject to any defenses that A.B./Wildwood had against the original owners.
I agree that the trial court properly entered the summary judgment in favor of A.B./Wildwood, because its performance under the agreement was excused by the original owners' anticipatory breach. Therefore, I concur in the result. *Page 791