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A trial court clearly erred in finding that there was mutual assent to modify a land contract where no consideration existed to evidence mutual assent

Holding that the trial court clearly erred in finding that there was mutual assent to modify the land contract at issue to waive interest, and erred as a matter of law in ruling that the modification complied with the statute of frauds, the court reversed the judgment for plaintiff-FMG entered after a bench trial and remanded for further proceedings. FMG entered into a 5-year land contract with the defendant and her late husband (the Deyos) in 2005 to purchase 66 acres of former farmland FMG planned to develop. On appeal, defendant argued that the trial court erred in concluding that there was mutual assent to modify the land contract and waive interest. The court held that "the trial court erred as a matter of law in finding that there was consideration to support the alleged modification of the land contract to eliminate interest." FMG contended that "there was consideration to support the modification because it did not walk away from the project" and because it paid-off a contract with a neighboring landowner (S). It essentially alleged that, because it did not breach its contracts with S and the Deyos, "the Deyos received consideration for agreeing to waive the interest payments. The trial court essentially agreed with FMG, reasoning that FMG continued to pay the property taxes and paid-off the" other contract, "which in turn, provided the Deyos with a benefit. This amounted to an error of law." The Deyos "were not required to waive interest to compel FMG to perform its duties under these agreements as it is a long-standing principle of contract law that 'doing what one is legally bound to do is not a consideration for a new promise.'" Further, warranty deeds the Deyos released for less than the originally agreed upon amount did not constitute "writings that evinced mutual assent to waive the interest payments." FMG could not identify any language in "the deeds relative to a modification of the interest payments." Other evidence introduced at trial also supported "that there was no mutual assent to waive the interest payments." Remand was appropriate "for a determination of a final amount due on the land contract taking into account the contract's interest provisions." 

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