Lowy v. United Pacific Insurance Co.
Supreme Court of California
429 P.2d 577 (1967)
Marcus Lowy (plaintiff) contracted with Arnold Wolpin (defendant) for excavation and grading work (a separate $73,500 lump-sum arrangement secured by its own bond, per Exhibit A) and separately for street-improvement work (priced per Exhibit B and secured by a distinct $125,000 bond); Wolpin completed 98 percent of the excavation and grading work, including $7,200 in extra work, but a dispute arose over pricing the remaining $1,470 of work, prompting Wolpin to stop performing, after which Lowy immediately hired another contractor to finish both the remaining excavation work and all street-improvement work. The trial court found Lowy breached by hiring a replacement contractor and failing to pay Wolpin timely, excusing Wolpin's further performance, and awarded Wolpin damages for his excavation and grading work plus attorney's fees while denying him lost-profit damages on the unperformed street-improvement portion; Lowy appealed.
Whether, if a specified sum of money is to be paid on full performance, the actor is entitled to part of the sum before completion if full performance has been excused, prevented, or delayed by the act of the other party.