## Facts

- George H. Hathaway, operating as the Redpath Lyceum Bureau, arranged for a musical quartet to perform a concert in Montpelier, Vermont.
- Sabin contracted to furnish a hall (the opera house) for the concert and to pay \$75 after the entertainment.
- A severe snowstorm lasted about 36 hours before the concert, making roads and streets largely impassable; the quartet was in Barre and the usual train service was suspended.
- Believing the musicians and audience could not reach Montpelier, Sabin notified Hathaway that a performance would be impossible and did not open or heat the opera house.
- Late that afternoon an irregular train ran; the musicians returned to Montpelier, arrived early in the evening, and went to the hall at the appointed time.
- Hathaway was ready to perform, but could not because Sabin failed to provide the hall.
- The trial court directed a verdict for Hathaway for \$75 plus interest; Sabin appealed.

## Issues

1. Whether a discrepancy between the plaintiff’s pleaded business name and the proof at trial created a material variance barring recovery.
2. Whether Hathaway proved a compensable breach and resulting loss when he was ready to perform but was prevented by Sabin’s failure to furnish the hall.
3. Whether Sabin was excused from performance by an apparent (but not actual) impossibility caused by the snowstorm.
4. Whether the trial court properly directed a verdict for the contract price rather than submitting damages to the jury.

## Decision

- The judgment for Hathaway was affirmed.
- Any variance in the plaintiff’s business description was immaterial because Hathaway was the sole interested party and Sabin had contracted with him in substance.
- Sabin breached by failing to furnish the hall, which prevented performance.
- Apparent impossibility based on Sabin’s assumption did not excuse nonperformance because the musicians ultimately were able to arrive and perform on time.
- A directed verdict for \$75 plus interest was proper because the contract fixed the amount due upon performance, and the loss flowed directly from the breach.

## Legal Principles

- An immaterial variance in the plaintiff’s name or business style does not defeat recovery when it does not change the real party in interest or mislead the defendant.
- A party ready and able to perform may recover expectation damages when the other party’s breach prevents performance.
- Contractual duties are not discharged merely because performance appears doubtful; if the nonbreaching party ultimately can perform, the other party remains bound and may not avoid liability based on an assumption that difficulties would be insurmountable.
- When liability is established and damages are fixed by the contract price, the court may direct a verdict for that amount.

## Conclusion

The court held Sabin liable for the contract price because his failure to provide the hall prevented a ready and able performer from performing, and the snowstorm created only an apparent impediment that did not excuse Sabin’s contractual obligation when performance remained possible.


Hathaway v. Sabin, 63 Vt. 527, 22 A. 633 (Vt. 1891)