Contracts I, Pages 57–60

Tomczak v. Koochiching County Highway Dept.

Minnesota Court of Appeals, 1999


A gravel pit near the Tomczak's home had rising water levels. Mrs. Tomczak brought this to the attention of a county commissioner who told her to come to a county board meeting. As the pit was not owned by the county, they said it was the landowners' responsibility. The board did authorize the use of a highway department pump at the suggestion of an engineer however, which the Tomczak's said and signed that they would maintain and accept liability for. The first pump did not work adequately, and so a second pump was installed. The pumping continued for a month or two, until the pumping washed out a catch basin and flooded a neighbor's property. Shortly after the pump was removed the Tomczak's house.

Procedural History:

Trial court gave partial summary judgment to the defendant, dismissing the plaintiff's contract claim.


If someone offers to provide equipment if you use and take liability for it, is that consideration for a contract?

Plaintiff's Argument:

The liability form entered the Tomczak's into a contract with the county, which they broke by withdrawing the pump.


A gratuitous conditional promise is unenforceable.


The county did not give the pump to the Tomczak's because they wanted the Tomczak's to use and to be liable for the pump. It was merely a condition of their gift of the pump. Therefore there was no consideration.


No, someone offering to provide equipment if you use and take liability for it is not consideration for a contract by itself. Affirmed.