Thos. J. Dyer Co. v. Bishop International Engineering Co.
United States Court of Appeals for the Sixth Circuit
303 F.2d 655 (1962)
Bishop International (defendant), general contractor on a racetrack project for the Kentucky Jockey Club, subcontracted plumbing work to Thos. J. Dyer Co. (plaintiff) under an agreement providing that Bishop's payment wasn't due until 35 days after Jockey Club accepted the work and 5 days after Jockey Club paid Bishop; Dyer completed the work and additional change-order work, Jockey Club accepted it and paid Bishop for the originally contracted work but never paid for the additional work before filing for bankruptcy, leaving Dyer with an unpaid balance of $108,519.11. Dyer sued Bishop and its bond provider, obtained summary judgment, and the defendants appealed.
Whether, where a promised performance is scheduled to occur at a particular time after action by a third party, the nonoccurrence of the third-party act relieves the promisor's duty to perform.