Marcovich Land Co. v. J.J. Newberry Co.
Indiana Court of Appeals
413 N.E.2d 935 (1980)
Relevant factsFree
Marcovich's (defendant) 1953 commercial lease with Newberry (plaintiff) obligated Marcovich to repair or reconstruct the premises at its own expense if damaged or destroyed by fire; when the building was completely destroyed by fire in 1971, Marcovich refused to rebuild given the $452,000 cost, which it considered commercially unfeasible. Newberry sued for lost profits and was awarded $117,000, and Marcovich appealed, arguing the fire clause didn't cover total destruction and that rebuilding was commercially impracticable.
IssueFree
Whether the defense of impracticability is available where the risk of loss was anticipated and allocated between the parties.