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36. Is the owner likely to prevail in an action against the engineer for damages resulting from his failure to perform under the contract?
An engineer entered into a written contract with an owner to serve in the essential position of on-site supervisor for construction of an office building. The day after signing the contract, the engineer was injured while bicycling and was rendered physically incapable of performing as the on-site supervisor. The engineer offered to serve as an off-site consultant for the same pay as originally agreed to by the parties.
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A is incorrect. An offer by a party to perform less than what was contracted for, even if the substituted performance is reasonable, will not excuse a breach. More importantly, because the parties contracted for the engineer to personally provide on-site services, the engineer's continued ability to perform those services was a basic assumption of the contract. He became unable to do so through no fault of his own, and his nonperformance is therefore excused.
C and D are incorrect. The engineer is not in breach. Because the parties contracted for the engineer to personally provide on-site services, his continued ability to perform those services was a basic assumption of the contract. The incapacity of a particular person to perform his or her duty under a contract renders the performance impracticable and operates as an excuse for nonperformance.