Karl Wendt Farm Equipment Co., Inc., Cross-Appellee v. International Harvester Co. And International Harvester Credit Corp., Cross-Appellants

The court has held that the district court erred in submitting the defendants’ defense of impracticability of performance to the jury. I disagree.

The court concedes, correctly I think, that the Michigan Supreme Court “might” recognize the impracticability doctrine, but the court says, “it would not do so in the circumstances of this case as a matter of law.” Despite the court’s use of the verb “might,” I assume it means the Michigan Supreme Court, in all probability, “would,” if asked, adopt the doctrine of impracticability of performance as defined in Restatement (Second) of Contracts § 261.…