First Capitol Mortgage Corp. v. Talandis Construction Corp.

I agree substantially with the majority’s analyses of the contract and the facts, up to the point where the majority considers the issue of variance which is raised by the plaintiff on appeal and to which defendant has not replied. The majority says that plaintiff has neither alleged facts in its complaint to justify recovery on its theory of waiver, nor did it amend its pleadings to encompass these principles, nor was evidence adduced at trial by the plaintiff supporting that theory. With these contentions I disagree.

The complaint alleges full performance of the conditions of the contract…