CONTRACTS--lMPRACTICABILITY OF PERFORMANCE AS AN EXCUSE FOR BREACH OF CONTRACT

ln a recent federal case, plaintiff construction company contracted to enlarge a dam for defendants, which would involve, according to the original estimates, the excavation of 30,000 cubic yards of earth. During the performance of the contract, defendants ordered further excavation in order to reach a firm foundation so that ultimately a total of 84,000 cubic yards were removed. It was defendant's claim that the plaintiff was obliged to perform this additional work to fulfill its contract. Plaintiff sued in quantum meruit for the value of labor and materials for the entire project; defendants stood upon the contract, contending that mere unanticipated difficulty or expense did not excuse the plaintiff's late performance of the contract or furnish a basis for additional compensation.

Holding that uncontemplated circumstances (presumably unusual soil and rock conditions underlying the surface) had made radical changes in the character, amount, and expense of. the work to be performed, the court found that the contract should be deemed abrogated and allowed full recovery on a quantum meruit basis. This decision is noteworthy because not only does it accept the doctrine of impracticability of performance as an excuse for non-performance of contractual duties, but it carries the doctrine to the extreme of charging the promisee with the additional expense incurred in rendering "impracticable" performance.