Brief Fact Summary. Howard (Defendant) appeals from a judgment in favor of the Mineral Park Land Co. (Plaintiff) holding that the Defendants owed the Plaintiff $3,630.00 under the contract.
Synopsis of Rule of Law. When performance depends on the existence of a given thing and such thing is the basis of the agreement, performance is excused to the extent that the thing ceases to exist.
Issue. Whether the facts justified the Defendant in its failure to take from the Plaintiff’s land all of the earth and gravel required?
Held. Yes. Judgment reversed in part.
When performance depends upon the existence of a given thing and such existence is assumed as the basis of the agreement performance is excused to the extent that the thing ceases to exist. Something is impossible when it is not practical and a thing is impracticable when it can only be done without excessive and unreasonable cost.
Here, Defendant alleged that he did not haul the gravel off of Plaintiff’s land because it was under water and it would cost too much to remove. Therefore, it was economically impracticable for the Defendant to remove the gravel. The Defendant did not bind himself to take what was not there. The difference in cost is so great here that to require the Defendant to remove the gravel and earth through more expensive means would be unjust. Therefore, an existing impracticability such as the underwater gravel acts as a predicate for excusing performance. Therefore, there should not have been recovery for the Plaintiff on the second count.
Discussion. This case relaxed the rule that it had to be physically impossible to excuse performance.
The court here only was concerned with the second count of Plaintiff’s complaint.