## Facts

- Contractors (defendants) agreed with a landowner (plaintiff) to take from plaintiff’s ravine land the earth and gravel needed to build a public concrete bridge.
- The written contract contemplated about 114,000 cubic yards and set a tiered price: 5¢ per yard for the first 80,000 yards, the next 10,000 yards free, and 5¢ per yard above 90,000.
- Defendants removed 50,131 cubic yards and paid less than plaintiff claimed was owed for that material.
- Plaintiff also sought damages for defendants’ failure to take an additional 50,869 cubic yards allegedly available on the property, asserting defendants instead obtained that quantity elsewhere.
- The trial court found the land contained more than 101,000 cubic yards of earth and gravel, but only the 50,131 cubic yards actually taken were above water and removable by ordinary means at ordinary expense.
- The remaining material was under water and could be removed only by extraordinary means with excessive and unreasonable cost and delay; further extraction was not physically impossible but was financially impractical.
- The trial court awarded plaintiff (1) contract recovery for the 50,131 cubic yards taken and (2) damages for failure to take the remaining material from plaintiff’s land.
- Defendants appealed.

## Issues

1. Whether the contract required defendants to take all earth and gravel needed for the project from plaintiff’s land when the remaining material was submerged and retrievable only at excessive and unreasonable cost.
2. Whether performance may be excused when it is not literally impossible but is impracticable due to excessive and unreasonable expense, given the parties’ assumed conditions at contracting.

## Decision

- The California Supreme Court affirmed the award requiring defendants to pay for the 50,131 cubic yards actually taken.
- The court reversed the damages award based on defendants’ failure to take additional material from plaintiff’s land.
- The court held defendants were excused from further extraction to the extent the remaining material was not practically “available” because recovery would require extraordinary methods and excessive and unreasonable cost.
- The case was treated as falling within the doctrine of impossibility as applied to circumstances where the subject matter effectively ceases to exist for practical purposes.

## Legal Principles

- When contractual performance depends on the assumed existence or availability of a particular thing, performance is excused to the extent that assumed condition fails.
- “Impossibility” may include situations where performance can be accomplished only at excessive and unreasonable cost and delay.
- A promise to take materials from a specific source is construed to cover what is reasonably and practically obtainable from that source under ordinary conditions, not what exists only in a physically present but economically prohibitive form.
- A party remains liable for payment for materials actually taken and accepted under the contract, even if further performance is excused.

## Conclusion

The court limited the contractors’ obligation to materials practically obtainable from the designated land under ordinary conditions, excusing further extraction where submerged gravel could be reached only through extraordinary methods at excessive and unreasonable cost, while enforcing payment for the quantities actually removed.


Mineral Park Land Co. v. Howard, 172 Cal. 289, 156 P. 458 (Cal. 1916)