Seitz v. Mark-O-Lite Sign Contractors, Inc.,

510 A.2d 319 (N.J. Super. 1986)

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Nature of the Case

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Facts

P and D entered into a contract for sign work. P gave D a deposit check in the amount of $3,200. The contract between the parties contained a provision which reads as follows: 'The Company shall not be liable for any failure in the performance of its obligation under this agreement which may result from strikes or acts of labor union, fires, floods, earthquakes, or acts of God, or other conditions or contingencies beyond its control.' Within a few days of the execution of the contract, D discovered that its expert sheet metal worker, Al Jorgenson, a diabetic, was required to enter the hospital and would be unable to work for an unknown period of time. Jorgenson was the only employee of defendant capable of performing the expert and detailed sheet metal work required. D sent a letter returning the uncashed deposit check offering to complete any portion of the work which D was able to perform. P entered into an agreement with another to perform the necessary work for the total sum of $20,000. P then sued D for breach in the amount of $7,200, representing the difference between the contracts. D raised the defense of impossibility of performance.