Watkins & Son v. Carrig

Procedural History

–          Arbitrator ruled in favor of the plaintiff.

  • Found that the oral agreement superseded the written contract.


–          Written contract between parties, plaintiff agreed to excavate cellar for a given price…soon after commencement, solid rock was found.

–          Plaintiff notified the defendant, had a meeting, and agreed that the plaintiff should remove rock for about 9 times the original price in addition to the original agreed upon price

–          Judge

  • Original contract provided “all material” clause – mistake cannot be argued in this case – plaintiffs fault for not knowing what was underneath.
  • “Rescinded” – the oral contract was the sole contract made as if the written one never happened.
  • Defendant – was willing to forgo his rights and pay the plaintiff the money for the extra rock.
    • Argues – 1) facts do not support a claim for 2 independent contracts, substitution and one for recession – thought the first was to stay in place, and just pay more for the second one.
      • Promise to pay more was without consideration – promise to pay the plaintiff for something already agreed upon.
        • Partial rescission is the consideration?
  • Plaintiff – R§ 89 – modification was fair because it was not anticipated at the beginning of the agreement- it was a fair price and defendant received fair value on it.
    • Original contact was rescinded.
      • Mutually agreed upon changes, mutual consent, makes new contract.


–          Did the grant of relief constitute a valid contract?


–          Yes


–          Changes to meet changes in circumstances and conditions should be valid if the law is to carry out its function and service by rules conformable with reasonable practices and understandings for business and commerce.


–          If it was a promise w/o consideration it would be easy. Claim here is that the contract was rescinded and a new one was made.

–          Defendant

  • Intentionally and voluntarily yielded to a demand for a special price for excavating rock – whether or not he had a right, he made no attempt to exercise that right.

–          Parties agreed that new price would control the deal.

–          Valid discharge of obligation from the first contract – distinct in residence of the new contract.

–          Plaintiff threatened to not perform the contract, but defendant yielded to the new contract without protest and should be held accountable for new contract.

–          Maintain reasonable order.

  • “Fundamental justice and reasonableness” should be attained.


–          Exceptions overruled, appears to be in favor the plaintiff.


–          R§89.

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