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Wholesale Sand & Gravel v. Decker

    Brief Fact Summary.

    Wholesale Sand and Gravel (Wholesale) contracted with James Decker (Decker) on June 13, 1989 to install a gravel driveway on Decker’s property.  Wholesale took much longer than expected, Decker terminated the contract and hired another contractor to finish the job.

    Synopsis of Rule of Law.

    When one party’s conduct constitutes an anticipatory repudiation, the non-breaching party can terminate the contract

    Facts.

    The only time reference in the contract was that payment was to be made within 90 days.  Wholesale’s president believed they had 90 days to complete the project, but told Decker the driveway portion would be done in one week.

    Wholesale began work the weekend after the contract was executed, but immediately experienced difficulties due to the wetness of the ground and weather delays. 

    Decker contacted Wholesale regarding the inactivity on the site on July 12th and was told Wholesale would “get right on it.”  On July 19th, Decker gave Wholesale one week to finish.  On July 28th, Decker called to cancel but agreed to give Wholesale one more day.  Wholesale still did not show up, and Decker terminated the contract and hired someone else. 

    Wholesale commenced this action and the court held for the Plaintiff.  The court concluded that Wholesale’s conduct constituted an anticipatory repudiation of the contract, allowing Decker to terminate within the 60 day reasonable time period for completion of the project.  

    Issue.

    Did the court err in finding Wholesale’s conduct to be an anticipatory repudiation?

    Held.

    No.  Affirmed.

    ·         Wholesale had taken its equipment and did not return.

    ·         One two occasions Wholesale promised to get right to work but never did so; and still did not appear when confronted that it would be fired.

    ·         Wholesale’s conduct was properly found to be an anticipatory repudiation.

    Dissent.

    The record is without words or conduct on the part of the Plaintiff that distinctly, absolutely indicate an inability or refusal to perform.  The judgment should have been vacated.

    Concurrence.

    None

    Discussion.

    On the record, it was reasonable for Decker to conclude that Wholesale would never complete the contract.


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