WHOLESALE SAND & GRAVEL v. DECKER
630 A.2d 710 (Maine S. Ct. 1993)
PARTIES: P: Wholesale Sand & Gravel - Contractor
D: James Decker - customer
RELIEF
REQUESTED: Money Damages
LEGAL THEORY: Breach of Contract
PROCEDURAL
HISTORY: Superior Court - Jury-less Judgement in favor of D.
P appeals to Maine Supreme Court.
FACTS: 6/13/89: D contracts with P for the earthwork and installation of a gravel driveway. Contract does not specify a completion date, but pmt. was to be made within 90 days. P believes he has 90 days to complete work but only tells D that the work will be done within a week.
Following
Weekend: P begins work but stops work when bulldozer becomes stuck due to wet ground.
Next
Weekend: P returns to complete work but is unable to do so without substantially exceeding contract price because ground is still too wet. D does not return.
7/12/89: D phones P president, Carl Goodenow, and tells P he urgently needs his driveway completed. P tells D he will get right on it. D still does not return.
7/19/89: D phones Goodenow again and gives P a deadline of one week to complete the driveway. P again say he will get right on it. D still doesn't show up to complete work.
7/28/89: D phones Goodenow to terminate contract. P tells D that he will be at the site the next day.
D decides to wait but P does not show up. D terminates the contract and has work done by other contractor. P thinking he had another 45 days to complete the work then sues D for breach of contract.
Judge finds reasonable time to complete the work was 60 days to complete but finds in favor of D because Ps conduct was an anticipatory repudiation of the contract permitting D to terminate it prior to the 60 day deadline.
ISSUE: Did Ps conduct amount to a repudiation of the contract?
HOLDING: By repeatedly failing to complete the work after giving assurances to D that he would do so, and by failing to show up as promised, D could conclude that P repudiated the contract allowing D to terminate it.. AFFIRMED.
REASONING: Restate 2d Contracts §250 allows a party to terminate a contract when the other parties words or conduct evidences an intent to repudiate the contract.
Court states that Ps removal of all equipment from site; failure to return to the site; failure to get right on the job as promised (twice); D telling P he would be fired if he did not appear at the site the following day and Ps failure to appear after promising they would be there; made it reasonable that for D to conclude that P would never finish the driveway as promised.
DISSENT: Record did not contain any record that P distinctly and absolutely evidenced his intent not to perform the contract. Finds P did show an intent to complete the contract when conditions permitted. Tr. Ct should not have allowed D to terminate the contract before the 60 days.
RULE: The words and conduct of a party must manifest an unequivocal and definite unwillingness or inability to perform the contract for the other party to terminate it. Repeated failure to complete the work as promised even in the face of a threat to lose the contract can be considered as definite and unequivocal.