Breach of contract...third party fails to perform..

Once again I come to the Dope with these legal sillinesses…Here we go:

John has a son who is trying to get a baseball scholarship at a good college. He negotiates a representation agreement with Bill who is known for his contacts within the collegiate athletic ranks.

John is hesitant and Bill really wants the gig. Bill calls up Willie Mays and tells Willie about the boy, and Willie agrees (whether fully, partially, he was drunk, whatever) that he will recommend the boy get a scholarship from these universities.

Bill goes back to John and tells him that he has Willie Mays on board, and if you sign with me, Willie Mays will tell the colleges that the boy should get a scholarship.

John jumps at the chance and signs an agreement with Bill. However, it is Bill’s standard boilerplate that says nothing about Willie Mays.

Several months pass and Willie Mays either sobers up or takes a second look and not only does not recommend the boy, but he tells the colleges not to give the boy a scholarship.

John is mad saying that Bill promise that Mays would endorse his son. Bill says that he is very sorry (and assume Bill acted in good faith) but that he has no control over what Willie Mays does.

Has Bill breached his contract with John?

Civil law is most definitely not my area.

So from the half-assed speculation department, I’d wonder if the contract has a merger clause. If it does, then the whole Mays business is not part of the contract and is inadmissible under the parol evidence rule.

If it does not have this clause, then it becomes a question of fact: was the contract only a partial integration or a complete integration of the agreement? If partial, then was the Mays business a materiel part of the contract?

And there might be some UCC stuff about parol evidence. I dunno.


Wouldn’t this “contract” be regarded as completely void as to the Mays endorsement.
That would seem to be the very definition of “impossibility” - for Bill has no ability to ensure the action of Mays.
You can’t have a valid contract which calls for the impossible - Bill controlling the action of Mays.

A reasonable man (stop snickering!) would realize that Bill could NOT control the action of Mays, so the contract is void on its face as to Mays’ action or lack of action.

It would be like calling the cops on someone who stole your drugs.

And both Bill and John should know that the NCAA does not permit agents.

You beat me to it… the OP obviously doesn’t know how NCAA scholarships work.

Okay, don’t fight the hypo. I was thinking of the parol evidence rule, but I can get around that, so let’s pretend it was in writing.

As far as impossibility, that would be an excuse for failure to perform, but John would be able to rescind the contract. He doesn’t still have to accept Bill’s services.

Further, wouldn’t Bill bear the risk that Mays will back out since he was the one who promised his performance?

No, I wouldn’t agree with that analysis. In contractual matters, it’s possible for Party A to a contract to warrant that a third party will take a particular action. The other party to the contract doesn’t necessarily know what relationship Party A has with the third party.

However, if the third party doesn’t carry through, that doesn’t make the contract void. It makes Party A liable to Part B for breach of contract, namely his guarantee that the third party would do so.

Agree with Bricker’s merger analysis.

No, because there’s nothing illegal about this contract. Party A says he can get Willie Mays to endorse. If Party A doesn’t follow his contractual obligation, he’s liable in damages, or if it’s a serious enough breach, Party B can rescind.

“Analysis,” is a generous way to describe half-remembered Contracts class. :slight_smile:

Tell us more about Bill’s standard boilerplate.

I don’t think merger or integration clauses are necessarily determinative, but if I was writing this up for a sophisticated client that’s where I’d start (as opposed to writing it up for a law school assignment, where I have to explain what a contract is and whether there are defenses to formation and so on).

Assuming there was no merger, I think this is a pretty textbook example of frustration of purpose (though is some wiggle room as to whether the endorsement was the “primary purpose” of the contract).

I am assuming that the kid doesn’t get a scholarship offer despite the lack of an endorsement, of course.

I got this:

Waddy v. Riggleman, 606 S.E.2d 222, 234 (W.Va. 2004) ("Even if a party contracts to render a performance that depends on some act by a third party, he is not ordinarily discharged because of a failure by that party because this is also a risk that is commonly understood to be on the obligor.”) (Comment e to the Restatement (Second) of Contracts § 261

I think you need a bit more context than that. Since both parties essentially relied on Mays’ representations, this amounts to something along the lines of a mutual mistake rather than an impossibility. In Waddy, the third party’s representation was made only to one side (Riggleman).

I don’t think so. In the OP, the promoter phones up Willie, and then comes back to the Dad with the assurance Willie will make the reference.

Willie never said anything to Dad, so Dad is not relying directly on Willie. Dad is relying on the promoter’s assurance that Willie will give the reference. That’s the basis for the claim that the promoter is in breach of his contract.

And parol evidence may be used to prove the existence of a mutual mistake in contract formation! I might have something here. Whether it is mutual mistake or impossibility, John gets his money back and the contract is void.

As an aside, the case name Waddy v. Riggleman is the coolest ever. :slight_smile:

I still prefer the styles of forfeiture cases (United States v. three tons of #9 nails, etc.)

Yes, but the difference is that promoter was actually told by Willie that he would give a reference (and presumably passed that information to Dad, rather than just giving assurances).

In Waddy, the attorney who was the third party told Riggleman he could perform his part of the deal based on assurances made by Riggleman (which turned out to be false).

Assuming this is a hypothetical version of a real case, are all these facts stipulated?

Why is that an important distinction?. The holding, quoted from a contract hornbook, states that one who relies on the performance of a third party bears the risk that the third party will not perform. IOW, Riggleman was bound by his promise that the attorney would get the release of the deeds, regardless of his good or bad faith in his relationship with the attorney. Do you read the outcome as hinging on Riggleman’s conduct vis a vis the attorney?

Yes, they are. All parties agree to the version of events outlined in the OP.

Yes, but only Riggleman was relying on the third party’s performance; the synopsis presented in the opinion does not indicate that Waddy was aware of the attorney’s representation or even that he knew that Riggleman might not be able to deliver clear title.

I see. So the counterargument might be (if you change the facts whereby Waddy was told by Riggleman that his attorney would clear title) that it was not reasonable for Waddy to rely on the third party performance if he believed it to be a material term of the contract? He should have gotten a second contract from the third party and his failure to do so might shift the burden of mistake to him?