## Facts

- Francis L. Gross and Dorothy M. Gross contracted with a home-improvement contractor to install aluminum siding on their home.
- The purchasers added a handwritten term: “This contract null and void if customer cannot get disability and death and sickness insurance. Customer to pay for insurance,” referring to Mr. Gross as the “customer.”
- The contractor’s agent promptly connected Mr. Gross with an insurance agent; Mr. Gross sent a check to begin obtaining the insurance.
- No evidence showed the insurance was obtained; the contractor proceeded with the work while aware the insurance had not issued.
- When the crew arrived to start work, Mr. Gross told them not to begin because he had not received the insurance.
- The contractor nonetheless completed the siding installation.
- The contractor assigned the payment obligation to Cambria Savings & Loan Association, which sued the Estate of Gross for the contract price or, alternatively, restitution for the value of the improvements.
- The jury, following instructions that allowed recovery on unjust enrichment even if the contract was a “nullity,” returned a verdict for Cambria.

## Issues

1. Whether the “null and void” insurance clause operated as a contractual condition that terminated the purchasers’ duty to pay when the specified insurance could not be obtained.
2. Whether, after the purchasers’ duty was discharged under the contract, the assignee could recover in quasi-contract/unjust enrichment for the value of the siding.

## Decision

- The Superior Court reversed the judgment for Cambria and remanded with instructions to enter judgment notwithstanding the verdict for the Estate.
- The court held the insurance clause created a condition tied to the purchasers’ payment duty, and failure to obtain the insurance discharged that duty under the contract’s terms.
- The court rejected unjust enrichment because the parties’ agreement allocated the risk of nonoccurrence of the insurance contingency, and the contractor proceeded despite knowing the condition had not been satisfied.

## Legal Principles

- A condition is an event not certain to occur that must occur before performance becomes due unless its nonoccurrence is excused. (Restatement (Second) of Contracts § 224)
- If a contract provides that a specified event terminates a duty to perform, the duty is discharged when that event occurs. (Restatement (Second) of Contracts § 230)
- Restitution is generally unavailable to reallocate risks expressly addressed by an enforceable contract that remains effective until a specified terminating event discharges performance.
- Discharge may be denied where the terminating event results from bad faith/prevention, waiver, or comparable conduct attributable to the party seeking discharge; absent such proof, the contractual discharge is enforced.

## Conclusion

The purchasers’ obligation to pay was discharged by the failure of the contract’s insurance contingency, and because the contract itself governed the parties’ risk allocation and discharge mechanism, the assignee could not obtain recovery in unjust enrichment for work performed despite knowledge that the condition had not been satisfied.


Cambria Sav. & Loan Ass'n v. Estate of Gross, 439 A.2d 1236 (Pa. Super. Ct. 1982)