## Facts

- George Seitz contracted to renovate the Strand Theater in Lakewood, New Jersey, including restoration of a neon marquee.
- In December 1983, Mark-O-Lite Sign Contractors, Inc. verbally estimated the sign work at $10,000–$12,000; no written agreement existed then.
- On December 26, 1983, Seitz executed a renovation contract with the theater owner that included $19,500 in sign-related items.
- On April 18, 1984, Seitz and Mark-O-Lite entered a written contract for sign work for $12,800; Seitz tendered a $3,200 deposit.
- The contract included a clause stating the company would not be liable for failure to perform due to strikes, union acts, fires, floods, earthquakes, acts of God, “or other conditions or contingencies beyond its control.”
- Days after contracting, Mark-O-Lite learned its only expert sheet-metal worker, Al Jorgenson, was hospitalized and unavailable for an unknown period.
- Mark-O-Lite returned the uncashed deposit check and offered to perform any portion of the work it could.
- Seitz hired City Sign Service, Inc. to do the sign work for $20,000 and sued Mark-O-Lite for $7,200 (the difference between $20,000 and $12,800).
- Mark-O-Lite asserted defenses of contractual excuse under the clause and common-law impossibility based on Jorgenson’s illness.

## Issues

1. Whether the contract’s clause excusing performance for enumerated events and “other conditions or contingencies beyond its control” covered the illness of Mark-O-Lite’s sole qualified worker.
2. Whether common-law impossibility (or impracticability) excused Mark-O-Lite’s nonperformance due to the unavailability of a key employee.
3. Whether the contract was effectively a personal-services obligation tied to that employee such that performance was non-delegable.

## Decision

- The court held Mark-O-Lite breached the contract and was not excused from performance.
- The clause did not extend to the illness of one employee.
- Impossibility did not apply because the contract did not require performance by a specified person and the work was commercially delegable.
- Seitz recovered $7,200 in expectation damages, measured by the cost of cover ($20,000) minus the contract price ($12,800).

## Legal Principles

- Catch-all language in an excuse/force majeure clause is construed in light of the specific listed events under ejusdem generis; internal staffing problems are not treated as the same kind of disruption as strikes, fires, floods, earthquakes, or acts of God.
- The illness or unavailability of a particular employee does not excuse a business’s contractual performance unless the agreement clearly requires performance by a named individual or otherwise makes the duty personal and non-delegable.
- Increased difficulty or higher cost of obtaining substitute labor ordinarily does not establish legal impossibility or impracticability absent contractual risk-shifting.
- When a seller/contractor wrongfully fails to perform and the buyer reasonably covers, expectation damages may be measured as the difference between the cover price and the contract price.

## Conclusion

The court rejected contractual and common-law excuse defenses based on a key employee’s illness, treated the risk of staffing and substitute performance as the contractor’s responsibility, and awarded Seitz cover-based expectation damages for Mark-O-Lite’s breach.


Seitz v. Mark-O-Lite Sign Contractors, Inc., 210 N.J. Super. 646 (Law Div. 1986)