Harris claims that K&G defaulted first, having no legal right to refuse the August progress payment. Did K&G default first? Explain.
K&G Construction Co. was the owner of and the general contractor for a housing subdivision project. Harris contracted with the company to do excavating and earth-moving work on the project. Certain provisions of the contract stated that (a) K&G was to make monthly progress payments to Harris, (b) no such payments were to be made until Harris obtained liability insurance, and (c) all of Harris’s work on the project must be performed in a workmanlike manner. On August 9, a bulldozer operator, working for Harris, drove too close to one of K&G’s houses, causing the collapse of a wall and other damage. When Harris and his insurance carrier denied liability and refused to pay for the damage, K&G refused to make the August monthly progress payment. Harris, nonetheless, continued to work on the project until mid-September, when the excavator ceased its operations due to K&G’s refusal to make the progress payment. K&G had another excavator finish the job at an added cost of $1,450. It then sued Harris for the bulldozer damage, alleging negligence, and for the $1,450 damages for breach of contract. Harris claims that K&G defaulted first, having no legal right to refuse the August progress payment. Did K&G default first? Explain.
The commitment made in the contract by the parties is non-dependent. If the parties have the intention that performance by each of the member is in no way a constrain on the accomplishment by another. The nonfulfillment of performance by one party does not excuse the other party for not reporting the same.
Assurance depends on the conditions and mutually togetherness, if the performance of the parties is intended to be constrained by each other's performance. If one party seriously breaches the contract of a mutually dependent promise, this is then going to excuse the other party from performing its commitments in the contract. As per the modern rule, it is assumed that mutually-made promises are simultaneous and dependent. Here, Operator B's careless damage to the house is a material breach of Individual H promise.
Company K is not at default because of the discernment. The commitment made by the parties, in the contracts, is mutually independent of each other.
Under sensible elucidations of the situation and the contract, the advance payment is constrained upon the individual H disregardful laborer. The assurance is simultaneous and mutually dependent. Company K has the right to reject the advance payment without the revocation of the contract on the basis of Individual H's carelessness.