Brief Fact Summary.
Chad DeRosier sued Utility Systems of America, Inc. (USA) for breach of contract after USA filled more yards of the property than the contract required.
Synopsis of Rule of Law.
A party to a contract is not required to accept a new agreement from a party who previously breached an agreement in order to mitigate damages.
Conflicts in evidence presented in affidavits are to be resolved by district courts.View Full Point of Law
Chad DeRosier (DeRosier) purchased property and contracted with Utility Systems of America, Inc. (USA) to fill the land. USA filled 6,500 cubic yards of the property rather than 1,500 cubic yards as per the agreement. DeRosier asked USA to remove the excess fill and USA refused. When DeRosier threatened to sue for breach of contract, USA offered to remove the excess fill for $9,500. DeRosier hired a third party for remove the fill for double the estimate from USA and sued USA for breach of contract. The trial court awarded damages to DeRosier and USA appealed.
Whether a party to a contract is required to accept a new agreement from a party who previously defaulted in a contract?
No. USA’s offer to remove the fill was not just an offer to cure the breach because they were charging DeRosier for the removal. The judgment of the trial court is affirmed.
A defaulting party is entitled to cure a breach in a reasonable amount of time if the defaulting party asserts that they will perform.