deliver to Barry

In California Barry signs a contract to purchase from Sally (a distant relative of the famous painter Graham Hines) a signed lithograph print by Hines marked “no. one out of ten.” The sales price is $10,000. No other prints in the same series have turned up on the market since 1945. A quite different Hines print was sold at auction, not private sale, in 1995 for $6,000.

Sally receives an offer of $15,000 from Tom for the same print and refuses to deliver to Barry, reselling the print instead to Tom for the $15,000. Barry sues Sally, demanding specific performance (delivery of the print) and claiming punitive damages. He introduces oral evidence indicating that Sally did not intend to sell to Barry, but entered into the agreement with him to induce a higher price from Tom. Should Barry be entitled to specific performance? Should he be entitled to punitive damages? Why or why not

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