One who makes a promise thereby expresses an intention that some future performance will be rendered and gives assurance of its rendition to the promisee. . . . a condition is a fact or an event and is not an expression of intention or an assurance. A promise in a contract creates a legal duty in the promisor and a right in the promisee; . . . a condition creates no right or duty and is merely a limiting or modifying factor.
Morrison v. Bare
Plaintiff was looking to buy a house to rent out, and Campensa showed him one. Plaintiff noticed a sticker on the furnace indicating that it had a racked heat exchanger. Bare told Campensa that the furnace had been repaired three years prior in 2004. Although Campensa did not remember whether Bare told him specifically whether the heat exchanger had been repaired, he told plaintiff that it had been. The utilities were off during walkthroughs and plaintiff did not try to independently tell if the heat exchanger worked. Plaintiff executed a contract to purchase the house, but included a "special condition" in the contract that Bare would provide him with a copy of the repair bill within 14 days. The contract also said to contact Bare if unsatisfied and that the contract would be voided if it could not be resolved satisfactorily, although plaintiff signed amendment removing this right four days later, which specified that neither Bare nor Campensa warranted the property in any manner.
Bare showed Campensa a copy of the repair bill, but that did not include replacing the heat exchanger. Upon learning of this, plaintiff insisted it be compensated which Bare refused. Instead of closing on the house, plaintiff sued Bare for specific performance and breach of contract, and Bare, Campensa, and Campensa's agency for fraud.
Trial court granted summary judgment to all defendants.
Were defendants obligated to repair the furnace?
Page 839, Paragraph 1
- Mr. Morrison neither performed his part of the contract nor showed his "readiness and ability" to do so;
- the requirement that Mr. Bare provide a bill showing that the heat exchanger was repaired was a condition for Mr. Morrison's performance, not a promise; and
- Mr. Morrison did not justifiably rely upon Mr. Campensa's statement that the heat exchanger had been repaired.