Carpenter (D), the trustee for Western Equities (D), offered to buy a number of first mortgages from Monroe Street Properties, Inc. (P) with shares of D's stock. D was to have its stock placed on the American Stock Exchange. Once D's stock was listed, P was to put the mortgages into escrow and obtain title insurance policies. P could not obtain the policies because the properties were subject to prior encumbrances. P could not pay off the prior encumbrances until D performed. P needed to pledge the D stock as collateral for a loan to pay off the prior encumbrances. P sued for breach of contract because D did not place its stock in escrow. D moved for a summary judgment; its performance was not due until P put the mortgages and title policies in escrow. D won its motion and P appealed.

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