Wheeling Downs Racing Ass'n v. West Virginia Sportservice, Inc., 13518

• Decision Date: 24 June 1975
• Docket Number: No. 13518,13518
• Citation: 216 S.E.2d 234,158 W.Va. 935
• Court: West Virginia Supreme Court
• Parties: WHEELING DOWNS RACING ASSOCIATION, a corporation, v. WEST VIRGINIA SPORTSERVICE, INC., a corporation, and Lawrence Sportservice, Inc., a corporation.

Page 234

216 S.E.2d 234

158 W.Va. 935

WHEELING DOWNS RACING ASSOCIATION, a corporation, v. WEST VIRGINIA SPORTSERVICE, INC., a corporation, and Lawrence Sportservice, Inc., a corporation.

No. 13518.

Supreme Court of Appeals of West Virginia.

June 24, 1975.

Syllabus by the Court

In the event of a change in the underlying conditions surrounding performance of a contract, where a contract provides for modification of its terms upon condition that the parties agree to the terms of the modification, and where the parties fail to so agree after a change in the underlying conditions, the contract will be held inoperative in its entirety where there is no provision for severability and the Court concludes that the entire bargain is so interrelated that a change in the underlying conditions with regard to one aspect so modifies the circumstances as to vitiate the mutuality of the bargain with egard to all other aspects.

Frank A. Pietranton, New Cumberland, Jeremy C. McCamic, McCamic, McCamic & Hazlett, Wheeling, for appellant.

Ronald W. Kasserman, Galbraith, Seibert & Kasserman, Wheeling, for appellees.

NEELY, Justice:

This appeal was granted for the purpose of defining further the order of this Court rendered in the case of Wheeling Downs Racing Association, Inc. v. West Virginia Sportservice, Inc., W.Va., 199 S.E.2d 308 (1973). As the Court finds that the Circuit Court of Ohio County erred in its interpretation of the mandate of this Court in the original case, Supra, the judgment of the Circuit Court of Ohio County is reversed.

In December 1957 Wheeling Downs Racing Association entered into six separate agreements with West Virginia Sportservice, Inc. pertaining to concessions to be operated by Sportservice on the premises owned by Wheeling Downs. The parties operated under the agreements until 1962 when a fire closed down the race track for a period of five years. When the track reopened in 1967 a dispute arose concerning the proper services to be given in the new, rebuilt clubhouse because the appellant, Wheeling Downs, requested more extensive services from the appellee than the appellee was willing to render. In 1969 Wheeling Downs informed Sportservice that it would consider the agreements terminated and instituted a declaratory judgment to determine the parties' rights under the contracts. Upon the application of Sportservice the circuit court awarded a temporary injunction to prohibit the eviction of Sportservice, and in 1971 the circuit court entered an order in favor of Sportservice awarding a permanent injunction to prohibit the eviction of Sportservice and to enforce specific performance of all six contracts.

In June 1973 this Court reversed the circuit court with regard to two of the six contracts, namely the two contracts involving the food concessions. The other four contracts involved parking and programs which this Court found in all regards still in force and effect.

The question to be determined on this appeal is whether the two food concession agreements are entirely...