Hathaway v. Sabin - 22 A. 633

Rule:

When one party has put it out of his power to perform, the other party can maintain an action without having tendered performance on his part, but a party who becomes involved in difficulties for which he is not responsible, if ultimately able to perform, is not to be deprived of the benefits of his contract because of an assumption by the other party that the difficulties would prove insurmountable.

Facts:

Defendant hall owner sought review of an order of a trial court (Vermont) directing a verdict for plaintiff musician, in the musician's action against the hall owner for breach of contract. Defendant hall owner entered into a contract with the musician, whereby the hall owner agreed to provide the musician with a hall in which to provide a concert. As part of the agreement, after the concert, the hall owner was to provide the musician a fee of $75 after the entertainment. The plaintiff alleged readiness to perform on his part, and assigned as the breach the defendant's failure to furnish a hall.

Issue:

Did the proof of loss in the non-receipt of the agreed-upon fee apply to the breach declared upon?

Answer:

Yes.

Conclusion:

The court affirmed the trial court's order directing a verdict for the musician. The court found that the breach was the non-payment of the fee, but the antecedent act was the hall owner's failure to provide the musician with the means of earning the fee. In so ruling, the court rejected the hall owner's argument that his breach was excused by the musician's apparent impossibility of reaching the hall, due to bad weather. Because the musician was able to reach the hall, he was entitled to the benefit of the contract, despite the hall owner's assumption that the musician would not make it. The court also rejected the hall owner's argument that, having been found liable, he was entitled to have the jury set damages. A directed verdict as to damages was proper where the damages were clearly what the musician would have been entitled to had the hall owner provided the hall.