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Facts: K for D to take from P all the earth and gravel they would need for the construction of a bridge. D took 50,131 yards from P, then procured 50,869 yards from elsewhere. P brings the suit for D breach of K, alleging that P's property had all the earth and gravel D would need. Trial court found for P, and awarded the price for the 50,869 yards of earth and gravel that D get elsewhere. D argument: Only the 50,131 yards that they did take from P was available. Also there was more there, it could only be taken at a huge expense, b/c it was under sea level, and the expense delay and using that gravel would be impracticable. Issue: Whether the impracticability of completing the K excuses D from performance. -Yes. Holding: Reversed, no damages for P for the gravel not taken by D.
Reasoning: When the K said all earth and gravel needed for D's purpose, it was assumed that the land contained the quantity necessary and available for use. The court says "available" doesn't just mean that it's there, but also that its practical and reasonable for D's to extract it. Just because it's not impossible, doesn’t mean it's not impracticable. Court also notes that b/c its expenditure would become more expensive than they had thought, doesn’t mean its impracticable. But here, when there is such a huge difference in the cost, they determine it is impracticable. RULE: "A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive or unreasonable cost." Notes • Requirement K - estimate 100,000 yards of gravel. D to get all gravel they need from P's land. ○ Point of reqs K is that seller relies on selling approx the estimate