Case
O’Callaghan v. Waller &
Beckwith Realty Co. (IL
SC 1958)
Facts
P injured by LL’s negligence under a
lease which exculpated the LL from
liability for negligence.
Graham v. Scissor-Tail.
(1990)
Arbitration clause apptd AFM as
arbitrator. P was concert promoter.
Henningsen v. Bloomfield
Motors, Inc. (NJ SC 1960)
P injured by steering failure in new
car purchased form D under a K in
which dealer disclaims all implied
warranties of merchantability.
Carnival Cruise Lines, Inc.
v. Shute (US SC 1991)
P injured on Ds ship. Forum
selection clause on back of tix.
Williams v. Walker-Thomas P sold to D furniture w/a crossFurniture Co. (US Ct of App DC
collateral clause & subsequent to Ds
1965)
default, sought to replevy all goods
previously purchased by D
Jones v. Star Credit Corp.
P bought freezer (worth $300) for
(NY SC 1969)
$900. Ps pd $619.98 already.
Armendariz v. Foundation
Health Psychcare Services
(CA SC 2000)
P signed employment app which incl
arbitration clause compelling
arbitration for wrongful termination.
Klein v. PepsiCo, Inc.
(US Ct of App 4th Cir 1988)
P wanted to buy D’s jet.
Laclede Gas v. Amoco Oil
(US Ct of App 8th Cir 1975)
After D breached a long-term
propane supply K, P sought specific
performance of K.
P wanted SP of a contract that would
have req’d hiring 300 wkrs to
complete a second shift.
Northern DE Industrial
Development v. E.W. Bliss
(Del 1968)
Walgreen Co. v. Sara Creek
Property Co.
Walgreen had lease that prevented
LL from leasing space in mall to
another pharmacy. LL gonna lease
to Phar-Mor.
Vitex Manufacturing
v. Caribtex
P was to process wool for D. P
reopened factory but D never sent
wool to be processed.
Laredo Hides v. H&H
Meat Products
D refused to continue delivering
hides under its K with P, P
Holding
A lease clause exculpating a LL from liability for his
own negligence should be upheld & is not void
against public policy. BUT most states now hold
exculpating clauses for residential leases
unenforceable.
K of adhesion containing arbitration clause fell w/in
reasonable expectations of P since he was subject to
thous of same. BUT it was uncon b/c it would be
biased in favor of union member artist.
At attempt by an auto dealer to disclaim an otherwise
implied warranty of merchantability is void against
public policy. Disclaimer was insufficient to
indicate to RP that he was giving up personal inury
claims if car had defect, unequal bargaining
positions.
A forum selection clause in a commercial passage K
is permissible if it’s fundamentally fair.
The defense of Unconscionability to action on a K is
judicially recognized. CL rule of caveat emptor
modified by 2-302, unequal bargaining position here
where P exploited D in uncon K provision.
2-302 permits a ct to reform a K on the basis of
excessive price. Factors incl: price to value ratio,
financial resources of buyer, knowledge of seller
concerning buyer’s situation, relative bargaining
position of the parties.
An adhesive K that incl an arbitration clause
requiring adhering party, but not the other, to
arbitrate all claims arising out of the same
transaction is uncon. K limiting damages of amt of
backpay compounds the uncon of agmt.
2-716 allows nonbreaching buyer to seek SP if goods
are unique. BUT
No Specific Performance when money damages are
adequate. Substitute goods can be purchased to
satisfy the original K.
Specific Performance is available as a remedy for
breach of a K involving personal property (ie. longterm supply K where supply is unique).
Cts unlikely to order SP where supervision of
performance would be impractical. Money damages
for losses caused by delay could be determined.
Rare to award SP for personal services K.
Ct issued injunction instead of awarding damages to
(1) shift burden of determining true cost of Ds
conduct from ct to parties. Avoid costly supervision
by ct. (2) prices/costs more accurately determined by
mkt than by gov’t.
In a claim for lost profits, overhead should be treated
as part of the gross profits & recoverable as
damages, & should not be considered as part of the
seller’s (processor’s) costs. Overhead should not be
treated as a cost saved in computing an award for
breach of K b/c it remains constant.
When a seller wrongfully repudiates a K or fails to
make delivery of the goods, the buyer may “cover”
R.E. Davis Chemical v.
Diasonics.
(US Ct of App 7th Cir 1987)
purchased them from other sources
& sued to recover the price
difference
D claimed it lost a “volume sale”
when P breached a K of sale.
US v. Algernon Blair
(US Ct of App 4th Cir 1973)
P sues to recover in quantum meruit
the value of the labor/materials it
furnished up to the pt at which it
justifiably ceased work.
Rockingham County v.
Luten Bridge
(US Cir Ct of App 1929)
P was to build a bridge. D
unjustifiably told P to stop wk under
K, but P refused and spent more $ to
complete bridge.
Tongish v. Thomas
(KS SC 1992)
After P lost money on resale K due to
Ds breach, it contended that the mkt
price measure of damages should be
used instead of its actual loss.
P, an actress, was to have the lead
role in a movie but D decided not to
make that movie and offered her
another leading role in a different
film.
Parker v. 20th Century Fox
Film
(CA SC 1970)
Jacob & Youngs v. Kent
(NY Ct of App 1921)
P built house for D with wrong type
of pipe.
Groves v. John Wunder
(MN SC 1939)
When D surrendered land it leased
from P, D had deliberately breached
K by removing best/richest gravel
w/o restoring land to existing grade.
Value of land was $12k if restored,
cost of restoring was $60k.
Peevyhouse v.
Garland Coal & Mining Co.
(OK 1962)
by obtaining such goods elsewhere & sue the seller
for the difference b/w the costs of cover & the K
price plus + incidental or consequential damages.
An aggrieved seller may recover, after resale, lost
profits from the original sale if he can show that the
subsequent sale would have occurred absent the
breach and would have been profitable.
A promise is allowed to recover in quantum meruit
the value of services he gave to a D who breached
their K irrespective of whether he would have lost
money had the K been fully performed and would
thus be precluded from recovering in a suit on the K.
After an absolute repudiation or refusal to perform
by one party to a K, the other party can’t continue to
perform and recover damages based on full
performance. The nonbreaching party is not
permitted to recover damages which he could have
avoided by reasonable efforts.
When a seller breaches, mkt damages should be
awarded even though in excess of the buyer’s actual
loss. Proper remedy for breach of K to deliver
goods is diff b/w K price & mkt price.
The general measure of recovery by a wrongfully
discharged employee is the amt of salary agreed
upon for the period of service, less the amt which the
employer affirmatively proves the employee has
earned or w/reasonable effort might have earned
from other employment.
A trivial & innocent omission will be excused &
damages for the minor breach of condition will be
allowed rather than holding that there’s a breach of
condition forfeiting entire K. Damages should be
measured by diminution of value rather than cost of
repair, replacement or completion.
When willful breach, breaching party may not sue on
the K nor invoke benefit of substantial performance
to limit damages to the diminution in value. Cost to
complete (not diminution in value) is proper remedy.
- anomolous
Where the K provision breached was merely
incidental to the main purpose, & where the economic
benefit of full performance of work is grossly
disproportionate to the cost of performance, the
damages are limited to the diminution in value
b/c of the non-performance.
Hadley v. Baxendale
(Ct of Exchequer 1854)
P stopped mill b/c of broken
crankshaft. D was late in delivering.
Delchi Carrier SpA v.
Rotorex Corp. (1995)
D sold P nonconforming
components. P unable to obtain
substitute components from other
vendors & lost sales as result.
Kenford Co. v.
P gave land to D to build sports
Normally, damages are those which arise naturally
from breach. Damages b/c of special circumstances
awarded when P informs D of special circumstances
or where these damages are reasonably foreseeable
by D at time K is formed.
Buyer who accepts order from customers based on
quantity of components purchased may recover lost
profits on those orders when components are
defective and buyer can’t purchase replacement
components.
Developer not entitled to recover loss of anticipated
Cty of Erie
(NY Ct of App 1989)
stadium. D didn’t. P sued for loss of
appreciation in surrounding land.
Fera v. Village Plaza
(MI SC 1976)
Lessor leased to another tenant b/c
he misplaced lease.
Wasserman’s v.
Township of Middletown
(NYSC 1994)
Lease b/w P and D contained a
stipulated damages provision based
on Ps gross receipts
Dave Gustafson v.
State (SD 1968)
P performed highway construction
wk for state. K had liquidated
damages clause, P delayed.
Gianni v. R. Russell
(PA SC 1924)
P rented space to sell fruit, candy,
soda. D allowed another to sell
soda. P claimed D agreed to give P
sole right sell soda in building at
time of lease negotiations though not
in written lease.
P transferred prop to relatives
reserving option to repurchase for 10
yrs. Relatives went bankrupt, P
sought to exercise the option.
Masterson v. Sine
(CA SC 1968)
MCC- Marble Ceramic
Cntr v. Ceramica Nuova
D’Agostino
(11th Cir 1998)
Bollinger v. Cent. PA
Quarry Strip & Const
(PA SC 1967)
Frigaliment Importing v.
B.N.S. International Sales
(US Dist Ct 1960)
Raffles v. Wichelhaus
(Ct of Exchequer 1864)
Oswald v. Allen
(2d Cir 1969)
WWW Associates v.
Giancontieri
(NY Ct of App 1990)
PG&E v. G.W. Thomas
Drayage & Rigging
D sells tiles to P. Terms on Ds form
Ks were in Italian.
P contracted to permit D to deposit
its construction waste on Ps prop if it
removed topsoil & covered the waste
w/it. This oral condition was not incl
in the written agmt and was omitted
by mistake. D didn’t remove topsoil.
D K’d to sell “chicken” to P. D
shipped stewing chicken instead of
broiling & frying chicken.
D agreed to buy cotton to be shipped
by P aboard “Peerless.” 2 ships
w/that name.
Swiss Coin Collection & Rarity
coins. Rarity collection incl some
Swiss coins
K contained a reciprocal
cancellation provision.
D obtained insurance policy covering
only 3rd party liability. P argues that
appreciation in value of real estate surrounding
sports stadium when gov’t decides not to build. No
indication that D reasonably contemplated that it
would assume liability for Ps unrealized
appreciation in land values. No tacit agmt that
breacher would be liable.
Although prospective profits for a new biz are
usually too speculative, when proof of prospective
profits is available, they may be recovered even
by a new biz.
If liquidated damages are far in excess of actual
losses, the clause may be an unenforceable penalty.
Liquidated damages clauses should be enforced
when they’re fair & reasonable attempts to fix just
compensation for anticipated loss caused by breach
of K. Useful when damages are uncertain in
nature/amt or are unmeasurable.
All preliminary negotiations, conversations, & verbal
agmts are merged in & superseded by the subsequent
written K, and unless fraud, accident, or mistake is
alleged, the writing constitutes the agmt and its terms
can’t be added to or subtracted from by parol
evidence.
Evidence of oral collateral agmts should be excluded
only when the fact finder (ct) is likely to be mislead.
The parol testimony as to the limitation of
assignment should have been admitted since that
term would not necessarily have been included.
Parol evidence can be shown to prove elements of
part of agmt that’s not reduced to writing.
CISG permits an inquiry into a party’s subjective
intent so long as the other party was aware of that
intent. Appears to be a rejection of the PER by
CISG.
A ct of equity has the pwr to reform a writing and
make it correspond to the understanding of the
parties on the ground of mistake as long as that
mistake is mutual.
The party who seeks to interpret the terms of the K in
a sense narrower than their everyday use bears
burden of persuasion to so show.
When a term used to express an agmt is ambivalent
& the parties understand it differently, & neither of
them is aware of the other’s understanding, there can
be no K.
Agmt not enforceable under Raffles b/c no sensible
basis for choosing b/w conflicting understandings of
the parties.
Extrinsic evidence can’t be considered in order to
create an ambiguity in written agmt. Before such
evidence be considered, ct must find an ambiguity in
the written K.
Evidence as to the meaning of a K term must be
admitted if K language is reasonably susceptible to
(CA SC 1968)
Delta Dynamics v. Arioto
(CA 1968)
Hurst v. WJ Lake & Co
(OR 1932)
Dalton v. Educations
Testing Service
(NY Ct of App 1995)
Burger King Corp v.
Weaver (1999)
Eastern Airlines v. Gulf Oil
Market Street Assoc v.
Frey
intention was to cover property as
well. D offers prior Ks indicating
only 3rd party property covered.
A separate K provision allowed
recovery of attys’ fees in any action
for damages.
Horse scrap meat. Different prices
for meat that were above or below
50%. 140 tons were 49.53-49.5%.
ETS allowed to cancel test score if it
found reason to question validity of
the score after offering test-taker 5
options to respond to Ds concerns.
D purchased 2 franchises from BK.
BK authorized another franchise &
D stopped paying. P sues, D
counterclaims breach of Ps duty of
good faith and fair dealing.
D claims Ps practice of fuel
freighting is a breach of K. Evidence
indicates practice is established in
the industry.
P allegedly deliberately failed to
notify D of an obscure clause that
could result in forfeiture of Ds
property.
Dickey v. Philadelphia
Minit-Man Corp
Lease based on percentage of D’s
gross sales, w/a minimum rent. D
discontinued certain biz, P sued for
ejectment.
Bloor v. Falstaff Brewing
Corp.
P alleged D breached its K’l
obligation to use its “best efforts to
promote & maintain a high vol of
sales.”
Zilg v. Prentice-Hall
(US Ct of App 1983)
Prentice-Hall cut original printing &
reduced ad budget.
Bak-A-Lum v. Alcoa
Building Products
(NJ SC 1976)
D canceled an exclusive
distributorship agmt w/P after it
knew that a new warehouse lease had
been entered into by P.
Sheets v. Teddy’s Frosted
Foods
(CT SC 1980)
P fired for complaining about
noncompliance w/state regulations.
Balla v. Gamgro (IL 1991)
P was in house counsel for D. P
reported illegal activity to FDA, was
fired.
the meaning argued for by the evidence. Extrinsic
evidence may only be excluded when it’s feasible to
determine meaning of wds from the instrument itself.
Ct allowed extrinsic evidence to show whether a
termination provision was an exclusive remedy.
In dealings b/w tradesmen, meanings of the terms of
the trade should take precedence. PE admissible in
order to explain the trade meanings.
P is entitled to SP of Ds promise to consider Ps
evidence in good faith. Implied good faith
requirement.
Implied covenant of good faith & fair dealing does
not support an independent CoA where alleged
breaching party has performed the express K’l
provision & the implied covenant would vary the
express terms of the K.
An established course of performance & dealing b/w
parties, which is also an established usage of trade,
becomes part of the terms of the K when not
objected to.
Diff b/w superior mkt info & taking advantage of K
partner. Duty of good faith doesn’t require complete
candor; party may take advantage of another based
on superior knowledge of mkt. BUT a party may
not intentionally exploit the other party’s
oversight of an important fact.
General rule: lease provision specifying certain use
of premises is a covenant against a noncomplying
use, not a covenant to use. No implied obligation for
a lesee to cont to conduct a biz specified in lease if
its failure to do so result in less rent to lessor. In
other cases where rent based on gross receipts but
no minim, cts have imposed an implied covenant to
cont biz.
A K’l provision obligating one to use its “best
efforts” to promote & maintain a high vol of sales of
a certain product is breached by a policy which
emphasizes profit w/o fair consideration of the effect
on sales vol.
A K’l agmt to publish a bk, reserving right to
publisher to exercise its discretion, does not incl an
implied obligation to aggressively promote the bk.
Exclusivity agmts that don’t specify duration are
terminable at will of either party. Limition: when
agent has in good faith incurred expense/time/effort
in developing biz, allowed to recoup investment. D
could terminate K or just the exclusivity feature w/o
paying compensation to P since P had 8/9 yrs of
exclusivity but needed notice.
Generally Ks of permanent employment are
terminable at will but one may maintain action for
wrongful discharge if he can prove that the discharge
violates public policy.
In-house counsel normally can’t claim tort of
retaliatory discharge. P had duty as atty to report,
thus no fork b/w losing job or reporting. Client may
Nanakuli Paving & Rock v.
Shell Oil
(US Ct of App 1981)
Columbia Nitrogen v.
Royster Co (4th Cir 1971)
Luttinger v. Rosen
(CT SC 1972)
Internatio-Rotterdam v.
River Brand Rice Mills
(2d Cir 1958)
Peacock Constr. v.
Modern Air Conditioning
(FL SC 1977)
Gibson v. Cranage
(MI SC 1878)
Doubleday v. Curtis
(2d Cir 1985)
McKenna v. Vernon
(PA 1917)
Hicks v. Bush (NY 1962)
Kingston v. Preston
(King’s Bench 1773)
Stewart v. Newbury
(NY App 1917)
Plante v. Jacobs
Gill v. Johnstown Lumber
D contended it was not obligated to
price protect P, and its conduct in the
past didn’t constitute a course of
conduct governing the K.
P D wanted to introduce evidence on
usage of trade & course of dealing to
show that specific K prix was not to
be binding on parties.
Obtaining mortgage w/interest rate
was condition precedent to K. D
unable to obtain mortgage. P offered
to compensate for failure of the
condition precedent.
P was to provide shipping
instructions at least 2 wks prior to
delivery of rice. P didn’t, D canceled
K.
D failed to pay sub (P) claiming
Owner paying was a condition
precedent.
discharge atty any time.
Trade usage & course of performance will be read
into Ks where such are so prevalent the parties would
have to have meant to incorporate them in the terms
of the K.
2-202 authorizes evidence of usage of trade & course
of dealing b/w parties to explain or supplement a K.
A condition precedent is a fact or event which the
parties intend must exist or take place b/4 there is a
right to performance, & if the condition precedent is
not fulfilled, K is not enforceable. P not req’d to
accept Ds compensation for failure of condition.
A condition, which is an act or event, other than a
lapse of time, must be literally complied with.
Notification was a condition precedent to D’s duty to
ship.
Ambiguous provisions in subKs which don’t
expressly shift the risk of pmt failure by owner to
subcontractor will be interpreted as constituting
absolute promises to pay and not as setting pmt by
the owner as a condition precedent to pmt.
P contracted to make a portrait for D. Where parties deliberately entire into an agmt which
If portrait failed to satisfy D, D need
violates no rule of public policy & is free of fraud or
not accept/pay. D not satisfied w/
mistake, no hardship in holding them bound by it.
portrait, & P sued for the K price.
Contractual liability may be conditioned on subjective
personal satisfaction.
Curtis (D) wrote manuscript P
Law requires party who terminates K to act in good
deemed worthless. P offered
faith. Where K contains satisfaction clause, it may
editorial assistance that D refused.
be terminated only as a result of honest
dissatisfaction. Ps duty of good faith incl providing
editorial assistance.
D asserted P needed certificate only
Constant/repeated disregard on owner to exact
at last progress pmt.
compliance w/provision. Now too late for him to
insist that failure on the part of the P to secure
certification before suit defeats his right of action.
Owner waived it repeatedly.
Written K made no mention of the
PER says oral agmt can’t be used as evidence to
condition (orally agreed to) that sum contradict written agmt. However, if oral agmt is for
of money had to be raised in order
a condition precedent to the effectiveness of K, then
for written doc to take effect.
such evidence may be introduced.
P to take over D’s biz. P had to make Covenant was cond’l & dependent. Performance of
pmts & show security, which he didn’t one party depends on prior performance of other.
do. P sued saying D still had to
Until prior condition performed, other party not held
deliver biz, arguing that covenants
to performance of his covenant. Performance of 1 st
were mutual & independent. D argues covenant is implied condition precedent to the duty
dependent covenant.
to perform the 2nd covenant.
P alleged he was to be pd in “usual
Where a K is made to perform wk and no agmt is
manner” even though not written
made as to pmt, the work must be substantially
into K. When D failed to pay, P
performed b/4 pmt can be demanded.
stopped wk.
P built D house w/misplaced wall. D P rendered substantial performance and is due K
refused to finish paying. P refused to price. D should receive damages for Ps failure in
complete job and sued for breach of
finishing home. Unjust to let owner retain value of
entire K.
building w/o pmt b/c of small mistakes.
P K’d to drive & deliver 4 mill ft of
When consideration for work done is
logs but had delivered only a part of
apportioned/apportionable in K, that K will be
Britton v. Turner
that amt when flood swept away rest
of logs.
P wkd for D for 9 ½ mo when K
specified 1 yr.
Kirkland v. Archbold
P to repair/improve Ds prop but
defaulted after partial performance.
Walker v. Harrison
D rented electric sign which was hit
w/tomato. D refused to make further
pmts until P cleaned sign.
D breached his covenant to perform
in a wkmanlike manner, P declined
to pay b/c of bulldozer damage. D
refused to perform further, causing
damage to P.
D to deliver rails to P but refused to
do so after P reduced available
suppy and made Ds performance
more difficult.
K&G Construction v.
Harris
Iron Trade v. Wilkoff
New England Structure v.
Loranger
Hochester v. De La Tour
(Queen’s Bench 1853)
D was to construct gypsum roof on
school, terminated deal contending
that D failed to provide enough
skilled wkmen as req’d by K.
P contracted to be a courier for D for
3 months. D changed mind b/4 P
was to start. P sues and is in ct b/4
the K was to arise.
Kanavos v. Hancock Bank
& Trust Co (MA SC 1985)
D sold stock to which P had earlier
been given a K’s right of first refusal.
McCloskey & Co. v.
Minweld Steel Co.
(US App 1955)
P requested assurance that the work
would be completed w/in 30 days. D
asked for help in obtaining steel. P
sued D for anticipatory breach.
P to do wk for D. D began wking, P
failed to sign D’s proposal. P tried
to insert a liquidated damages clause
unlikely to be accepted.
C.L. Maddox, Inc. v.
Coalfield Services, Inc
(7th Cir 1995)
Cosden v. Helm
Pittsburgh-Des Moins Steel
v. Brookhaven Manor
Water (US App 1976)
Norcon Pwr v. Niagara
Hohawk Pwr
P contended that D repudiated K by
failing to meet a demand for a
personal guarantee of pmt prior to
performance of the K.
interpreted as divisible/severable in case of part
performance.
Restitution – Employee may recover reasonable
value of services (benefit to employer) less damages
employer suffers by reason of early termination, w/K
providing limit on amt of recovery.
Restitution – negligent breach shouldn’t be treatede
same as willful breach where forfeiture of value of
wk completed is punishment. Award reasonable
value of wk done less damages suffered by D thru
incomplete wk.
A party attempting to repudiate a K must convince
the ct that the other party has materially breached the
K.
Whenever possible, according to the intentions of the
parties and the good sense of the case, mutual
promises in a K will be regarded as dependent
covenants. Modern rule – mutual promises in K are
presumed dependent.
A party who prevents the other party from
performing may excuse other party’s performance.
BUT mere difficulty of performance will not excuse
a breach of K even though that difficulty was created
by other party.
When notification of a ground for termination is sent
to a party deemed to be in breach, the notifier is
NOT limited to that ground in defending his action.
When promisor repudiates K b/4 date set for
performance, P may either wait until date set for
performance or sue immediately.
To recover for breach of K, owner of a right of first
refusal must prove that, had he been notified of the
impending sale, he would have been ready, willing,
and able to exercise his right. Ability to perform is a
constructive condition.
To show an anticipatory breach, the party breaching
must express an absolute & unequivocal refusal to
perform.
One party may cease performance under an oral K
where other party refused to sign a written K.
When a seller anticipatorily repudiates a K, buyer’s
damages should be based on the mkt price at a
commercially reasonable point after the seller
notifies the buyer of the repudiation.
2-609 allows a party to cease performance due to the
repudiation of the other only where the repudiating
party fails, upon demand, to give assurance of pmt.
Here no cause for assurance was shown.
Party has right to demand adequate assurance of
future performance when reasonable grounds arise to
lead that party to believe that the other party will
commit a breach of nonperformance where K not
Stees v. Leonard
D tried to build on quicksand 2x.
Taylor v. Caldwell
P to use D’s music hall for concert.
Hall destroyed by fire, neither party
at fault.
Transatlantic Financing
Corp
D chartered P’s vessel to carry cargo
from US to Iran. B/c of closing of
Suez, P made extended voyage and
sued D for increased expenses.
Krell v. Henry
Man rents room to watch coronation
which was cancelled.
governed by UCC.
If one binds himself by a positive, express K to do an
act in itself possible, he must perform unless
prevented by act of God, the law or the other party to
K & will not be excused by hardship, unforeseen
hindrance or difficulty short of absolute
impossibility.
Both parties to K are excused. In a K where the
performance depends on cont’d existence of a
person/thing, a condition is implied that the
impossibility of performance arising from the
perishing of the person/thing shall excuse the
performance of the K.
When impossibility alleged, ct must construct a
condition of performance based on changed
circumstances involving: (1) a contingency,
something unexpected, must have occurred, (2) risk
of unexpected occurrence must not have been
allocated by agmt or custom and (3) occurrence of
contingency must have rendered performance
commercially impracticable.
Where purpose of K is frustrated by an unforeseeable
supervening event, and the purpose was w/in the
contemplation of both parties when K was made,
then performance is excused.