Opera Company Of Boston, Inc. v. Wolf Trap Foundation Of The Performing Art

817 F.2d 1094 (4th Cir. 1987)

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Nature of the Case

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Facts

P and D agreed to a contract where P was to give four 'fully staged orchestrally accompanied [operatic] performances to the normally recognized standards' of the Opera Company on the nights of June 12, 13, 14, and 15, 1980 at the Filene Center. P was to be paid by D $272,000 payable under a schedule providing for payment of $20,000 at the signing of the contract and a further $40,000 on April 1, 1980, with the balance payable in four equal installments before the rise of the curtain on each performance. D was obliged to make the above payments and also to furnish the place of performance including an undertaking 'to provide lighting equipment as shall be specified by P's lighting designer.' On the final day between 6:00 and 6:30 p.m., a severe thunderstorm arose causing an electrical power outage. All electrical services in the Park, in its roadways, parking area, pathways, and auditorium were out. The public utility advised that it would be at least after eleven o'clock before any service by it could be resumed in the Park and that it was likely power might not be available before morning. Some 3,000 people were in the Park for the performance; 3,500 more were expected before 8:00 p.m. when the performance was to begin. The Park Service recommended the immediate cancellation of the performance and advised D if the performance were not canceled, it disclaimed any responsibility for the safety of the people who were to attend as well as those who were to perform. D canceled the performance. D failed to make the final payment under the contract. Five years after the cancellation, P filed this suit to recover the balance due under the contract. D claimed the doctrine of impossibility of performance because the performance was impracticable as a result of the power outage. The district judge accepted that the performance was canceled 'based on a public safety decision, that the performance should not go forward since there was no lighting in the parking area to the walkways, and very questionable as to whether or not a generator could be set up to provide additional light for the theater itself and still provide adequate light for the people who had to move backstage.' The judge also found 'that the P was there [at the Park] and was ready to go forward with the performance,' but that 'the only reason the performance did not go on was the fact that there wasn't adequate lighting.' The contract stated that D was obligated to provide sufficient lighting 'for the performance to go on,' and that power outages were 'reasonably foreseeable.' The court held it was 'readily foreseeable that a power outage could affect a performance.' He ruled that D had not made out its defense of impossibility of performance and granted judgment for P. D appealed.