Morrison v. Bare

2007-Ohio-6788 (Ct. App.)



While the failure to perform a promise is a breach of contract, the failure to satisfy a condition is not. A promise is always made by the act or acts of one of the parties, such acts being words or other conduct expressing intention. A fact can be made to operate as a condition only by the agreement of both parties or by the construction of the law. The purpose of a promise is to create a duty in a promisor. The purpose of constituting some fact as a condition is always the postponement or discharge of an instant duty (or other specified legal relation). The non-fulfillment of a promise is called a breach of contract, and creates in the other party a secondary right to damages. It is the failure to perform a legal duty. The non-occurrence of a condition will prevent the existence of a duty in the other party; but it may not create any remedial rights and duties at all, and it will not unless someone has promised that it shall occur.


The buyer contracted to purchase the seller's home upon being informed by the agent that a cracked heat exchanger on the furnace had been fixed. However, when a repair bill indicated that other parts of the furnace were fixed but not the exchanger, as represented, the buyer filed suit. The trial court granted summary judgment to all defendants.


Was there was a perfected contract of sale?




The court held that the trial court's ruling was proper. For purposes of the specific performance and breach claims, the buyer failed to either perform his part of the contract or show his "readiness and ability" to do so. As the property had already been sold to a bona fide purchaser, specific performance was not obtainable. Further, the buyer's requirement that the seller provide a furnace repair bill showing that the exchanger was repaired was a condition for the buyer's performance rather than a promise. Upon the failure of that condition, the buyer properly treated the contract to purchase the property as terminated. There was no breach. There was no showing that the buyer had relied justifiably on the agent's statement that the exchanger had been repaired for purposes of the fraud claim.

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