Defendant challenged a judgment from the District Court for the Southern District of New York, which awarded plaintiff damages in a breach of contract action that arose from defendant’s failure to deliver a proposed computer system.
-Plaintiff federal agency selected defendant electronics manufacturer’s proposal for a computer system. Defendant described its system as “truly revolutionary” and promised delivery nine months from the date of the purchase order.
-Defendant postponed delivery twice and finally announced that, due to engineering difficulties, it had become impracticable to deliver the computer system.
-Plaintiff filed suit against defendant and was awarded damages. Defendant appealed, alleging that delivery was made impossible by basic engineering difficulties.
-The court held that, when defendant promoted the computer system as a “revolutionary breakthrough", the risk of the revolution’s occurrence should not have fallen on the plaintiff.
-The court determined that the reasonable supposition was that the revolutionary breakthrough had already occurred or, at least, that defendant was assuring plaintiff that it would be found to have occurred when the system was assembled.
-Sellers promoting technological advances accept the risk that they will be unable to develop the advances in order to perform a K.
-In analyzing this per 266, the second element of fault is not passed, it is there fault that they couldn’t make it. the best argument in conflict with that is that the government knew there weren’t any prototypes, thus they also assumed the risk.
-Under the doctrine of subjective impossibility, a promisor’s duty is never discharged by the mere fact that supervening events deprive him of the ability to perform, if they are not such as to deprive other persons, likewise, of ability to render such a performance.
-The judgment awarding P damages was affirmed.