Commercial Law Keyed to Lopucki
Lowy v. United Pacific Insurance Co
Plaintiff entered into a contract with Defendant for certain excavation and grading work on lots and streets along with the street improvement work in a subdivision containing 89 residential lots. The contract provided that the Defendant agreed to provide and pay for all materials, labor, tools, equipment, light, transportation and other facilities necessary for the execution of the work. The price set forth in the contract was $73,500.00. The street improvement work was not included in this price. The contract provided for means to calculate the price for the street improvement work. Defendant performed 98% of the contracted excavation and grading work and then a dispute arose between the parties regarding the payment of $7,200.00 for additional work necessitated by Plaintiff’s change in the plans. Defendant stopped performance and Plaintiff employed other to do the street improvement work. Plaintiff subsequently sued Defendant for breach of contract. Defendant filed a cross- complaint for damage for breach of contract and reasonable services rendered. The trial court determined that Plaintiff was entitled to nothing against Defendant and allowed Defendant to recover on the cross-complaint. The trial court determined that there were two phases of work to be performed (1) grading and (2) street improvements; and Defendant performed all terms and conditions relating to the grading and the additional work in the amount of $7,200.00. The court also held that Plaintiff breached the contract by employing others to do the street improvement work and by not making the payment to the Defendant for the grading work. Thus, Defendant’s performance was excused.
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