310 N.E.2d 363 (Mass. 1974).

Plaintiff, the general contractor on a construction project, entered into a contract with Defendant for the latter to supply concrete for the project. During the construction project, a picket line was maintained on the site until the project’s completion. During this time, Defendant refused to deliver concrete to the work site, which forced Plaintiff to purchase the concrete from other sources at a price higher than the contract price with Defendant.

Plaintiff brought an action for breach of contract and sought damages for an amount equal to the additional cost of the concrete and the expense of locating a different source. Defendant argued that its non-performance was excused under the doctrine of impossibility of performance, and thus there had been no breach.

 At trial, Plaintiff asked for jury instructions that essentially provided that a failure to perform one’s contract duties as a result of a particular event is not excused unless the contract provides that such an event is an excuse. Plaintiff further requested an instruction stating that Defendant “was required to comply with the contract regardless of picket lines, strikes or labor difficulties.”  The trial court refused to give these instructions to the jury and the jury returned a verdict in Defendant’s favor.

Plaintiff appealed from the adverse judgment, and argued that the trial court erred in refusing to grant the requested instructions. The Supreme Judicial Court of Massachusetts first held that the trial court did not err in refusing to give the jury instructions that in effect provided that the doctrine of impossibility only applies when the particular event is set forth in the contract as an excuse. The court held that “[t]his, in effect, requires a charge that no set of circumstances will ever excuse a supplier from performing.”

With respect to the jury instruction stating that Defendant “was required to comply with the contract regardless of picket lines, strikes or labor difficulties,” the issue revolved around whether such labor activities could ever provide an excuse for the failure to perform a contractual duty. The court noted that in some situations “[a] picket line might constitute a mere inconvenience and hardly make performance ‘impracticable.”’  Also, in some situations, particularly those involving industries “with a long record of labor difficulties,” such difficulties could be sufficiently anticipated at the time the contract was entered into.  But, “[m]uch must depend on the facts known to the parties at the time of contracting with respect to the history of and prospects for labor difficulties during the period of performance of the contract, as well as the likely severity of the effect of such disputes on the ability to perform.”

The court concluded that “[w]here the probability of a labor dispute appears to be practically nil, and where the occurrence of such a dispute provides unusual difficulty, the excuse of impracticability might well be applicable.”

Accordingly, the court held that the trial court did not err in refusing to provide the jury instructions requested by Defendant, and it was proper to admit the evidence of the strike.

Related entries