Unifac Corp. v. Firestone

OPINION OF THE COURT

Appellant appeals from a Final Judgment requiring a return of a cash deposit paid on the contract. The issue is whether Appellee had a right to cancel a contract that was to be completed “as soon as possible” if an unreasonable time had elapsed.

The facts show that Appellee entered into a written contract requir*136ing performance “as soon as possible” on February 6, 1986, for construction of an aluminum pan roof shed. Several times during the next few weeks, Appellee attempted to get Appellant to begin work with no success, but with a number of excuses given.

Finally on the morning of February 26, 1986, Appellee cancelled the contract over the telephone. Appellant argues that later, on that very day, work would have begun, that delay was caused by failure of City to issue building permit and materials were on order but not received promptly. The Appellant contends that the Appellee’s cancellation and refusal to allow performance of the contract, entitled Appellant to a judgment for liquidated damages and attorneys fees as provided in the contract.

The parties agree that “as soon as possible” means “within a reasonable time” under current construction industry standards. At a non-jury trial, the trial judge found that Appellant did not perform the contract in a timely fashion, i.e., within a reasonable time.

The issue as to what is “a reasonable time” is an issue of fact to be determined by the trier of fact and will not be overturned on appeal. It is clear that from all of the facts and circumstances of this case, the trial judge found that the Appellant did not perform the contract within a reasonable time and that Appellee had sufficient justification for rescinding the contract.

AFFIRMED.