Citation. 172 Cal. 289, 156 P. 458,1916 Cal. 529
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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.
Facts.
Plaintiff owned certain land and the Defendant made a contract with public authorities for construction of a bridge across their land. Plaintiff granted to the Defendant the right to haul gravel and earth from Plaintiff’s land, the Defendant agreed to take away all of the gravel and earth necessary in the construction of the fill and cement work on the bridge. Defendant agreed to pay 5 cents per cubic yard for the first 80,000 yards, the next 10,000 yards were to be given free of charge, and the balance was to be paid for at the rate of 5 cents per cubic yard. Plaintiff’s complaint alleged that the Defendant had taken 50,131 cubic yards of earth and gravel and became indebted to the Plaintiff for $1,606.55. In other words, that they took more gravel and earth than they were entitled to. The second count sought to recover damages for Defendant’s failure to take from Plaintiff’s land any more than 50,131 yards. Defendant’s answer denied the allegations. The court found that Plai
ntiff’s land contained earth and gravel in excess of 101,000 cubic yards, the amount taken by the Defendant was above water level. The court found that the Defendant took all the available earth and gravel from Plaintiff’s premises.
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.
