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It is implicit in the doctrine of impossibility, and the companion rule of "frustration of purpose," that certain risks are so unusual and have such severe consequences that they must have been beyond the scope of the assignment of risks inherent in the contract, that is, beyond the agreement made by the parties. To require performance in that case would be to grant the promisee an advantage for which he could not be said to have bargained in making the contract. The important question is whether an unanticipated circumstance has made performance of the promise vitally different from what should reasonably have been within the contemplation of both parties when they entered into the contract. If so, the risk should not fairly be thrown upon the promisor.
Plaintiff, Mishara Construction Company, Inc., was the general contractor under contract with the Pittsfield Housing Authority for the construction of Rose Manor, a housing project for the elderly, entered into a contract with the defendant Transit-Mixed Concrete Corp., whereby the latter would supply all the concrete needed on the project, with deliveries to be made at the times and in the amounts as ordered by Mishara. Performance under the contract was satisfactory until April 1967, when a labor dispute disrupted work on the job site. Although work resumed, a picket line was maintained on the site until the completion of the project in 1969. Throughout that period, no deliveries of concrete were made by Transit, notwithstanding frequent requests by Mishara. After notifying Transit of its intention, Mishara purchased the balance of its concrete requirements elsewhere. Mishara sought in damages the additional cost of concrete incurred by virtue of the higher price of the replacement product, as well as the expenses of locating an alternate source. The trial court ruled in favor of Transit, holding that the latter’s failure to perform was due to impossibility of performance as a result of picket line at the contractor’s construction site. On appeal, the plaintiff argued that the trial court erred in refusing to instruct the jury that the contract was not terminable until the plaintiff received all of the concrete needed.
Did the trial court err in its jury instructions, thereby warranting the reversal of the decision in favor of the defendant?
On review, the court found that the lower court's jury instructions sufficiently covered the requirements that a definite quantity of goods and a definite duration of performance had to have been specified to enforce a contract for the delivery of the goods on a specified project. The court concluded that the lower court did not err in its refusal to instruct the jury that it had to find that the supplier breached the contract by failing to deliver the concrete to the contractor. The court determined that evidence that the picket line at the construction site, as a result of a labor dispute that neither party anticipated, made the contract impossible for the supplier to perform was properly admitted.