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Jane C. Avery v. Robert W. Hughes

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Before Boudin, Selya and Howard, Circuit Judges.

When defendant-appellant Robert W. Hughes failed to close on a real estate purchase and sale agreement (the Agreement), the seller retained his deposit, sold the property to a third party for a lower price, and assigned its claim for the price differential to plaintiff-appellee Jane C. Avery. Avery sued. The defendant resisted, arguing that the circumstances evinced the parties’ intent that the deposit would serve as liquidated damages. The district court rejected the defendant’s position and construed the Agreement as allowing the recovery of actual damages. Avery v. Hughes, No. 09-cv-265, 2010 WL 3211069 (D.N.H. Aug. 11, 2010). The defendant appeals. We affirm.

The court below made its critical contract-interpretation ruling on summary judgment. Consequently, we derive the facts from the summary judgment record and rehearse them in the light most flattering to the party against whom summary judgment was granted. Foote v. Town of Bedford, 642 F.3d 80, 81 (1st Cir. 2011).

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