impossible, that would be a repudiation of their promise and would have the same legal effect as would a repudiation in words.
In Lovell v. St. Louis Mutual Life Insurance Co. (1884), 111 U.S. 264, 4 S. Ct. 390, 28 L. Ed. 423, the plaintiff had taken out a policy of insurance with the St. Louis Mutual Life Insurance Co. St. Louis Mutual thereafter sold out to the Mound City Life Insurance Company, who took over the entire company. St. Louis no longer sought to continue under the obligation. They had put it out of their power to perform the contract. Both assets and liabilities were transferred to another insurance company.
In White v. Lumiere North American Company (1906), 79 Vt. 206, 64 A. 1121, the defendant hired the plaintiff to manage a plant for a period of years, and then leased the plant to another company. The court held that that lease made the company powerless to perform their contract with defendant, the contract was breached, and the defendant had no obligation to serve.
In Matthews v. Minnesota Tribune Co., 215 Minn. 369, 10 N.W.2d 230, 147 A.L.R. 147, the employer newspaper company put it out of their power to perform the contract of employment by selling the entire newspaper facility.
In Gaspar v. United Milk Producers of California (1944), 62 Cal.App.2d 546, 144 P.2d 867, the employer put it out of his power to perform the contract by selling his property.
And see Miller v. Schwinn, Inc., 72 App.D.C. 282, 284, 113 F.2d 748, 780; irrevocable dedication of land to Sanitary Commission terminates prior agreement to convey.
Thus, in each case cited the defendant was powerless to perform his contractual obligation. Further, each defendant at the time of trial did not seek to assume the contractual responsibility, but sought to deny his responsibility and affirm the responsibility of the new owner.
In the case at bar, the defendant has not placed it out of his power to perform. He has not sold his property. The lease with Luxenberg still remains in effect, and Mayfair expresses an intent to continue performance under that lease. The Court recognizes that there are portions of the Grand Union lease which are incompatible with the Luxenberg lease, specifically: 1) the warranty in which Gospel Spreading gives assurance that they have authority to enter into the lease and that they have good and marketable title free and clear of all tenancies [Paragraph 12]; and 2) the provision proscribing the use of the premises as a food supermarket for three years should Grand Union terminate the lease [paragraph 2].
Thus there are now two leases which are in conflict. Since that portion of Luxenberg's lease which concerns this Court is an option, both leases are executory so far as the right to lease the new facility is concerned. At this point, the Court is unable to determine if Mayfair intends to breach with Luxenberg or Grand Union. In his supplemental pleading to this matter, cross-defendant has for the first time indicated that "The Grand Union lease is subordinate to the Luxenberg lease" (Brief filed January 11, 1966, pg. 5).
In order to sustain a claim for anticipatory breach, that breach must be clear. There is no anticipatory breach at this time.
IV. Possible Future Litigation in this Matter.
In so holding, this Court does not intend to condone the Gospel Spreading-Grand Union agreement. At the time that agreement was made, neither Grand Union nor Walker and Dunlop (Gospel Spreading's own agent) were informed of the Luxenberg lease.
This Court will have a continuing interest in this matter. Since the Court has a background of the facts in this case, it is suggested that any future litigation which may arise from the lease might be heard by this Court.
Appropriate order to be submitted.
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