Opera Co. of Boston, Inc. v. Wolf Trap Foundation for Performing Arts

• Decision Date: 04 May 1987
• Docket Number: No. 86-2505,86-2505
• Citation: 817 F.2d 1094
• Parties: The OPERA COMPANY OF BOSTON, INC., Appellee, v. The WOLF TRAP FOUNDATION FOR the PERFORMING ARTS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1094

817 F.2d 1094

The OPERA COMPANY OF BOSTON, INC., Appellee, v. The WOLF TRAP FOUNDATION FOR the PERFORMING ARTS, Appellant.

No. 86-2505.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 13, 1986.

Decided May 4, 1987.

Rodney F. Page (David L. Kelleher, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., on brief), for appellant.

Edward Gross, for appellee.

Before RUSSELL and HALL, Circuit Judges, and McMILLAN, United States District Judge for the Western District of North Carolina, sitting by designation.

DONALD RUSSELL, Circuit Judge:

This is a breach of contract suit by the plaintiff to recover the agreed payment from the defendant for four operatic performances at the Filene Center in The Wolf Trap Park. The plaintiff asserts it was prepared, able and willing to perform as agreed but that it was prevented from giving one of the performances because of cancellation by the defendant of the performance on the ground it considered the performance impossible as a result of an electrical storm which terminated power to the pavillion during the time this performance was to be given. The court found against defendant's claim of cancellation of the performance because of an unexpected occurrence and granted judgment in favor of plaintiff. Defendant has appealed. We reverse and remand with instructions.

I.

The parties in this suit are the The Opera Company of Boston, Inc., an operatic organization recognized both nationally and internationally. The defendant The Wolf Trap Foundation for the Performing Arts is an organization for the advancement of the performing arts headquartered at Vienna, Virginia, and as such sponsors at the Filene Center in the Wolf Trap Park ¹ operatic performances and similar artistic programs. The Filene Center is located in the Wolf Trap National Park and is a part of the various facilities maintained and controlled by the National Park Service. It consists of a main stage tower, an auditorium and an open lawn. The main stage tower contains the stage, dressing rooms and space for the scenery and electrical effects. In front of the tower is a covered auditorium seating approximately 3,500 people. Beyond this is the uncovered lawn providing seating for an additional 3,000 people. The Park provides parking space. This parking area is separated from the Center itself. A number of pathways leading from the parking area to the Filene Center are available. The distance of the parking area from the Center varies from approximately 300 to 700 yards. Ordinarily, when there are any night performances at the Center, the roads in the park, the parking area and the pathways to the Center are lighted for the guidance of patrons at performances at the Center.

This suit between the parties arises under a contract between the plaintiff The Opera Company of Boston, Inc. (Opera Company) and the defendant The Wolf Trap Foundation for the Performing Arts (Wolf Trap) by which the Opera Company for its part agreed to give four "fully staged orchestrally accompanied [operatic] performances to the normally recognized standards" of the Opera Company on the nights of June 12, 13, 14 and 15, 1980 at the Filene Center. For this the Opera Company was to be paid by Wolf Trap $272,000 payable under a schedule providing for payment of $20,000 at the signing of the contract and a further $40,000 on April 1, 1980, with the balance payable in four equal installments before the rise of the curtain on each performance. Wolf Trap, in turn, for its part under the contract was obliged to make the above payments and also to furnish the place of performance including an undertaking "to provide lighting equipment as shall be specified by the Opera Company of Boston's lighting designer." ²

Both parties to the contract performed apparently all their obligations under the contract through the operatic performance on June 14. These performances had been fully sold as well as had the remaining performance on June 15. During this final day, the weather was described as hot and humid, with rain throughout the day. Sometime between 6:00 and 6:30 p.m. a

                severe thunderstorm arose causing an electrical power outage.  As a result all electrical service in the Park, in its roadways, parking area, pathways and auditorium were out.  Conferences were had among representatives of the Park Service and that of Wolf Trap.  The public utility advised that it would be at least after eleven o'clock before any service by it could be resumed in the Park and that it was likely power might not be available before morning.  Various alternatives for supplying power were considered but none was regarded as relieving the situation.  Already some 3,000 people were in the Park for the performance;  3,500 more were expected before 8:00 p.m. when the performance was to begin.  The Park Service recommended the immediate cancellation of the performance and advised Wolf Trap if the performance were not cancelled, it disclaimed any responsibility for the safety of the people who were to attend as well as those who were to perform.  It was the Park Service's view that a prompt cancellation was necessary to enable the parties to leave the park safely and to prevent others from coming.  Wolf Trap agreed and the performance was cancelled.  While some of these discussions were being carried on a representative of the Opera Company was present but she took no part in the decision to cancel, though she voiced no objection.  Since the performance was cancelled, Wolf Trap failed to make the final payment under the contract to the Opera Company.  Five years after the cancellation, the Opera Company filed this suit to recover the balance due under the contract.  Wolf Trap defended on the ground that performance by it of its obligation under the contract was excused under the doctrine of impossibility of performance. 3   The basis for this defense was that the final performance by the Opera Company for which payment was claimed had been cancelled because a performance was impracticable as a result of the power outage
                

II.

The district judge began his oral opinion granting judgment in favor of the plaintiff by noting that the parties had stipulated the contract in question, a memorandum detailing the occurrence at the Park on the evening of June 15 by Craig Hankenson, an official of Wolf Trap, and the amount in issue. He then proceeded to find the storm, which caused the power shortage in the Wolf Trap Park, resulted in a complete loss of power at Filene Hall from about 6 o'clock on the evening of June 15. He apparently accepted the accuracy of Mr. Hankenson's memorandum that the performance on the night of June 15 was cancelled "based on a public safety decision, that the performance should not go forward since there was no lighting in the parking area to the walkways, and very questionable as to whether or not a generator could be set up to provide additional light for the theater itself and still provide adequate light for the people who had to move backstage." He found as a fact "that the Opera Company was there [at the Park] and was ready to go forward with the performance," but that "the only reason the performance did not go on was the fact that there wasn't adequate lighting." As he read the contract Wolf Trap was obligated to provide sufficient lighting "for the performance to go on," and that power outages were "reasonably foreseeable," as there had been some outages in the past and while "none had affected a performance prior to this occasion," it was "readily foreseeable that a power outage could affect a performance." He, therefore, held Wolf Trap had not made out its defense of impossibility of performance and granted judgment for the plaintiff.

The single question on appeal is whether this dismissal of Wolf Trap's defense of impossibility of performance was proper. The resolution of this issue requires a review of the doctrine of impossibility. We proceed first to that review.

III.

The doctrine of impossibility of performance as an excuse or defense for a breach of contract was for long smothered under a declared commitment to the principle of sanctity of contracts. This rationale for constrained application of the doctrine was expressed by the United States Supreme Court in Dermott v. Jones (2 Wall.), 69 U.S. 1, 8, 17 L.Ed. 762 (1864):

The principle which controlled the decision of the cases referred to rests upon a solid foundation of reason and justice. It regards the sanctity of contracts. It requires parties to do what they have agreed to do. If unexpected impediments lie in the way, and a loss must ensue, it leaves the loss where the contract places it. If the parties have made no provision for a dispensation, the rule of law gives none. It does not allow a contract fairly made to be annulled, and it does not permit to be interpolated what the parties themselves have not stipulated.

The growth of commercial activity in the nineteenth century, however, made this rigidity of the doctrine of impossibility both "economically and socially unworkable," see Cook v. Deltona Corp., 753 F.2d 1552, 1558 (11th Cir.1985), and in Taylor v. Caldwell, 3 B. & S. 826, 122 Eng.Rep. 309, 324, 6 R.C. 603 (1863), the English courts recognized these changed conditions and, relying largely on civil law precedents, ⁴ relaxed the constraints on the doctrine by the principle of sanctity of contracts as followed by the English courts since Paradine v. Jayne, Alleyn, 27, 23d Charles II (1670). It based such relaxation on the theory of an implied condition arising without express condition in the contract itself. In stating this new rule on impossibility of performance as a defense to a breach of contract suit, the court said:

The principle seems to us to be that in contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility arising from the perishing of the person or...