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Wholesale Sand & Gravel, Inc. v. Decker |
Maine Supreme Judicial Court |
1993 |
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Chapter |
19 |
Title |
Breach, and Repudiation |
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Page |
725 |
Topic |
Anticipatory Repudiation and Prospective Nonperformance |
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Quick Notes |
The manifestation of an intention to repudiate a contract may be made and communicated by either words or conduct. |
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Book Name |
Contracts Cases, Discussions, and Problems. Blum Bushaw, Second Edition. ISBN: 978-0-7355-7069-6. |
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Issue |
o Whether continued promises followed by non-performance constituted anticipatory repudiation? Yes. |
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Procedure |
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Trial |
o Judgment in favor of Decker |
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Supreme |
o Affirmed. |
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Facts |
Rules |
Reason |
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o Pl - Decker o Df - Wholesale What happened? o Decker contracted Wholesale to install a gravel driveway. o Wholesale agreed to perform earth work, including the installation of a gravel driveway. o The contract contained no provision specifying a completion date for the work. o The only time reference made in the contract was that payment was to be made within 90 days. o Although Carl Goodenow, Wholesale's president, believed the company had 90 days within which to complete the work, he told Decker that the driveway portion of the work would be completed within one week. o Wholesale begin working the weekend after the contract was executed; however, they could not begin because the ground was wet. o Wholesale returned the following weekend, but it was still to web so Wholesale waited for the ground to dry. o A month later Decker made several attempts to get Wholesale to complete the driveway. o Wholesale made numerous promises without appearing. o Decker terminated the contract and hired another contactor to finish the job. Suit o Wholesale commenced action against Decker for a beach of contract. Trial Court o Judgment in favor of Decker. |
Trial Court Reasoning o Wholesales conduct constituted an anticipatory repudiation of contract, permitting Deck to terminate the contract during the 60-day period.
Anticipatory Repudiation o An anticipatory repudiation of a contract is "a definite and unequivocal manifestation of intention on the part of the repudiator that he will not render the promised performance when the time fixed for it in the contract arrives."
Manifestation of Repudiation o The manifestation of an intention to repudiate a contract may be made and communicated by either words or conduct. o The words or conduct evidencing such refusal or inability to perform, however, must be definite, unequivocal, and absolute.
Wholesale Arg o Court erred in concluding that its conduct constituted an anticipatory repudiation of the contract.
Courts Response o We disagree. o After its second weekend of work at the site, Wholesale removed its equipment and did not return. o Moreover, on two occasions Goodenow, responding to Decker's inquiries about the progress of the job, promised to get right to work but did not do so. o Indeed, when confronted by the fact that Wholesale would be fired if he did not appear at the job site the following day, Goodenow promised that he would be at the site but did not appear. o On this record it was reasonable for Decker to conclude that Wholesale would never complete its performance under the contract.
Holding o We conclude therefore that the court properly found that Wholesale, through its conduct, manifested an unequivocal and definite inability or unwillingness to perform within a reasonable time. o Affirmed
DISSENT o The record is devoid of ANY words or conduct on the party of the Pl - that distinctly, unequivocally, and absolutely evidence a refusal or inability to perform. |
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Class Notes |
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250 When a Statement or an Act Is a Repudiation
A repudiation is
(a) a statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach under 243, or
(b) a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach. |