Justice Jeffery S. Brown
Plaintiff, a potential purchaser of a gas station franchise, sued for breach of contract, requesting defendants return a $40,700 down payment. A condition precedent to the execution of the contract was that plaintiff had to obtain written consent to the assignment of the lease from the gas station’s operator and supplier. Defendant received an e-mail from the operator and suppliers regional manager detailing that one of the conditions precedent was extensive training at the site where the station was located. Defendant advised the manager that plaintiff was no longer interested in the property because he did not want to complete the training. The court noted that there was no documentary evidence memorializing the respective positions of the parties, and no showing defendant attempted to declare a default by plaintiff, nor any showing plaintiff intended to cancel the contract. Taking this evidence into account, the court found it incredible that plaintiff would not want to continue his training at the gas station he intended to purchase. It found the credible evidence revealed defendant may have frustrated performance by requiring plaintiff to train at another location and held that plaintiff was entitled to the return of his down payment.
