Monroe Street Properties, Inc. (Monroe) (plaintiff) entered into a contract with Western Equities, Inc. (Western), represented here by its trustee, Orville Carpenter (defendant), for Monroe to sell 10 valid first mortgages to Western in exchange for Western common stock. The agreement further provided that Monroe was to obtain title insurance for the mortgages and that Western was to list its stock on the American Stock Exchange. The parties’ escrow agreement stated that compliance with the purchase and sale was to occur on or before Western listed and delivered its stock to Monroe. Western listed its stock as required but did not deposit any stock into escrow or otherwise deliver it to Monroe. Monroe deposited mortgages into escrow but they were subject to burdensome encumbrances. Monroe was financially incapable of removing such encumbrances so as to deliver clear title, or of obtaining title insurance, without first receiving and then pledging Western’s stock. After depositing the encumbered mortgages into escrow, Monroe demanded that Western deliver its stock. When Western refused, Monroe sued for breach. Carpenter moved for summary judgment, which the district court granted. Monroe appealed.