First National Bank of Omaha v. Three Dimension Systems Products, Inc.
United States Court of Appeals for the Eighth Circuit
289 F.3d 542 (2002)
The Bank (plaintiff) contracted with Three Dimension Systems Products (3D) (defendant) to build custom software in stages. After delivering Stage I, 3D invoiced the Bank for an unauthorized additional $250,000 and told the Bank it would not fix any Stage I errors after delivery -- with testimony that 3D's president said errors wouldn't be addressed until Stage III or IV, if ever, and that 3D wouldn't proceed to the next stage until the invoice was paid. The Bank sued for anticipatory breach; 3D counterclaimed for breach and argued it was never given a chance to cure. A jury sided with the Bank, but the district court granted 3D judgment as a matter of law, and the Bank appealed.
Whether an anticipatory breach occurs when one party to a contract demonstrates an unequivocal intent not to perform as promised while the other party remains willing and able to perform.