Pl - Decker
Df - Wholesale
Decker contracted Wholesale to install a gravel driveway.
Wholesale agreed to perform earth work, including the installation of a
The contract contained no provision specifying a completion date for
The only time reference made in the contract was that
payment was to be made within 90 days.
Although Carl Goodenow, Wholesale's president,
believed the company had 90 days
within which to complete the work, he
told Decker that the driveway portion of the work would be
completed within one week.
Wholesale begin working the weekend after the contract was executed;
however, they could not begin because the ground was wet.
Wholesale returned the following weekend, but it was still to web so
Wholesale waited for the ground to dry.
A month later Decker made several attempts to get Wholesale to complete
Wholesale made numerous promises without appearing.
Decker terminated the contract and hired another contactor to
finish the job.
Wholesale commenced action against Decker for a beach of contract.
Judgment in favor of Decker.
Trial Court Reasoning
Wholesales conduct constituted an anticipatory repudiation of
contract, permitting Deck to terminate the contract during the 60-day
An anticipatory repudiation of a contract is "a definite and
unequivocal manifestation of intention on the part of the
repudiator that he will not render the promised performance when
the time fixed for it in the contract arrives."
The manifestation of an intention to repudiate a contract may be made
and communicated by either words or
The words or conduct evidencing such refusal or inability to
perform, however, must be definite,
unequivocal, and absolute.
Court erred in concluding that its conduct constituted an anticipatory
repudiation of the contract.
After its second weekend of work at the site, Wholesale
removed its equipment and did
Moreover, on two occasions Goodenow, responding to Decker's inquiries
about the progress of the job, promised
to get right to work but did not do so.
Indeed, when confronted by the fact that Wholesale would be fired
if he did not appear at the job site the following day, Goodenow
promised that he would be at the site
but did not appear.
On this record it was reasonable for
Decker to conclude that Wholesale
would never complete its performance under the contract.
We conclude therefore that the court properly found that Wholesale,
through its conduct, manifested an unequivocal and definite inability or
unwillingness to perform within a reasonable time.
The record is devoid of ANY words or conduct on the party of the Pl -
that distinctly, unequivocally, and absolutely evidence a refusal or
inability to perform.