Mishara was building a housing
project. They entered a contract with Transit for concrete, with
deliveries to be made at times an in amounts required by Mishara.
That is a requirements
There was a labor strike at
the site and Transit refused to cross the picket lines, so no concrete was
Mishara covered by getting
someone else to deliver concrete at a higher price and sued Transit for
The Trial Court found for
Transit. Mishara appealed.
The Appellate Court affirmed.
The Appellate Court found
that in this case, it was commercially impractical for Transit to perform.
Basically, the Court found
that if Transit defied the strikers it would significantly hurt their
business, so they were allowed to break the contract.
UCC §2-615 talks about commercial impracticability.
Compare this decision to Maple
Farms Inc. v. City School Dist. (352
N.Y.S.2d 784 (N.Y.Sup. 1974))) that was decided the same year New York.
In that case, the Court held that Maple Farms was still liable to deliver
milk at the agreed price even though the company would take a heavy loss
on the deal.
Perhaps the difference was
that Maple Farms just made a dumb deal, so it was their own fault, while
Transit wasn't responsible for the strike?
Or maybe the courts didn't
want to set an anti-union precedent?