I can't wrap my head around this.

Here is the situation. Homeowner and fence company enter into a contract which requires the homeowner to obtain a City permit. Fence company verbally agrees to obtain the permit on behalf of the homeowner, goes to City office (and admits he went to obtain permit) and learns that homeowner needs a variance before the homeowner can get a permit.

Fence company refuses to work with homeowner to get variance (marking survey, putting down stakes) unless homeowner pays additional charges. Obviously no variance, no permit.

Homeowner sues for return of deposit and fence company argues that contract REQUIRES homeowner to get permit, homeowner did not, homeowner has broken contract. (Permit is secondary to variance which homeowner cannot get without cooperation of contractor.)

Homeowner argues contractor broke contract by attempting to get permit on behalf of homeowner and homeowner could not fulfill buyers side of contract without cooperation of contractor - therefore, contract was voided by contractor, deposit should be returned.

Judge looks confused - and I'm not joking.

Any thoughts?

I'm no lawyer... but I know a lot of Contractors. I've never heard of a contractor telling the homeowner THEY have to get the permits... when most times the homeowner has no knowledge of the industry and thus what will be needed for the permit (as far as details and information)... or even how and when to obtain a permit much less where. Now I HAVE heard of the Homeowner having to petition for the variance when needed. I actually know someone who did that recently for a home addition. Contractor got all the permits... homeowner tried to get a variance but failed so changes were made that didn't reguire the variance. Sperate contractor doing the driveway got the required permits themselves... not the homeowner just like the addition. Perhaps its something based on local laws? But none I have heard of.

IMO there is no contract. By verbally agreeing to obtain the permit for the homeowner, it was obvious that neither party contemplated an additional condition. The additional condition made performance impossible without additional costs. The parties couldn't agree on how to handle them. Thus, no meeting of the minds and no contract.