J. Gavigan Corp. v. Wampatuck Country Club

Exceptions overruled. In this action of contract, the plaintiff excepted to the entry of a verdict for the defendant under leave reserved. As an integral part of the contract (assuming a contract had in fact been made) the plaintiff was- to remove topsoil from the land of a third party to the adjacent land of the defendant and spread it, with other material, on the defendant’s golf course. Before performance began, through no fault of the defendant, the third party, who had agreed to provide the defendant with the topsoil free of charge, denied access to his land by the plaintiff to remove the topsoil. It appears that the parties from the beginning contemplated accessibility to the third party’s land by the plaintiff^ and, there being no warranty by the defendant of accessibility, the denial of access releases both parties from performance and gives no right to either to claim damages from the other for bleach of contract. Boston *763 Plate & Window Glass Co. v. John Bowen Co. Inc. 335 Mass. 697, 699-700 , and eases cited. See Restatement: Contracts, §§ 460-461.

Richard W. Renehan (Julian L. Yesley with him) for the plaintiff. Joseph G. Galligan, Jr. for the defendant.