Sec. 2774. Performance As Dependent On Actual Benefit To Adversary Party, Or Expense To Party Who Performs
Description
This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Sec. 2774. Performance As Dependent On Actual Benefit To Adversary Party, Or Expense To Party Who Performs
A party to a contract who by the terms of such contract assumes risk as to certain possible forms of loss, is bound by such assumption without regard to the actual outcome of the transaction;1 and accordingly the right to enforce the contract against the party who has not performed is not affected by the fact that performance has not bene-fited him as much as he had expected.2 The question in such cases is whether the party who claims to have performed a contract has done what he agreed to do, and not whether the adversary party has made a wise bargain, or received a financial benefit therefrom. The benefit to which the party is entitled is the benefit of performance of the contract and not the benefit of success in the ultimate outcome of the transaction.
11 United States. Lincoln v. Orth-wein, 120 Fed. 880.
Arkansas. Robinson Contracting Go. v. Twin City Bank, 103 Ark. 219, 146 S. W. 523.
Icwa. Old Settlers' Inv. Co. v. Marshall Vinegar, Pickle & Soap Co., 137 Ia. 558, 113 N. W. 326; Pierce v. Welkie, 165 Ia. 386, 145 N. W. 908.
Massachusetts. Gunther v. Gunther, 181 Mass. 217, 63 N. E. 402.
Missouri. United States, etc., Co. v. Sprinkler Co., 84 Mo. App. 204.
New York. Stokes v. Foote, 172 N. Y. 327, 65 N. E. 176.
Oregon. Bade v. Hibberd, 50 Or. 601, 93 Pac. 364.
Wisconsin. Charley v. Potthof, 118 Wis. 258, 95 N. W. 124.
12 Elliott v. Howison, 146 Ala. 668, 40 So. 1018; Sandy Valley & Elkhorn Ry. v. Hughes, 172 Ky. 65, 188 S. W. 894.
13 See Sec. 2778 et seq.
14 See ch. LXXXI.
15 See ch. LXXXIV.
1 Stewart v. Henningsen Produce Co., 88 Kan. 521, 50 L. R. A. (N.S ) 111, 129 Pac. 181; Hoskins v. Powder Land & Irrigation Co., 90 Or. 217, 176 Pac 124; Ferris v. Pett, - R. I. - , 2 A. L. R. 768, 105 Atl. 369; Speliopoulos v. Schick, 129 Wis. 556, 109 N. W. 568.
On the other hand, performance is not dependent upon the detriment or expense to the party who performs.3 The fact that the conduct of one of the parties makes it possible for the adversary party to do what he has promised with less expense than he had contemplated, does not prevent him from recovering the contract price for such performance.4
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