Marks v. Raymond

Citations

• 2021 Ohio 3375

Syllabus

The trial court's finding that the parties mutually abandoned their contract was supported by competent, credible evidence. Although mutual abandonment was not specifically pled as an affirmative defense in appellees' answer to appellant's breach-of-contract complaint, the record indicated that it was tried by implied consent of the parties. The trial court also did not err by failing to order appellees to return the money appellant had paid toward the contract, as doing so would not have restored the parties to their pre-contract positions and would have been unjust under the specific facts and circumstances of this case. Lastly, appellant's claim that the trial court erred by failing to find that appellees breached the parties' contract is inapposite because, even if the court had found such a breach, there was competent, credible evidence in the record establishing that appellant acquiesced in said breach, thus supporting the trial court's mutual abandonment finding. Judgment affirmed.