Hathaway v. Sabin
Supreme Court of Vermont 22 A. 633 (Vt. 1891)


Sabin was required to furnish a hall for a concert, and pay $75 after. He failed to keep up his end of the bargain, and Hathaway sued to recover the $75.

  • Apparently there was a bad snow-storm in the area, so Sabin argued that his performance was excused by the apparent impossibility of the musicians arrival.
  • However, the group managed to make it there on time.


The lower court awarded Hathaway $75.


Was Sabin’s performance excused?


No. Affirmed.


  • A party who becomes involved in difficulties for which he is not responsible, if ultimately able to perform, is NOT to be deprived of his contract because of an assumption by the other party that the difficulties would be insurmountable.

Restatement: Where, prior to the due date for the promisor’s performance, reasonable grounds arise to believe that the promisor will not perform in a material way when performance is due, the promisee may demand adequate assurance of due performance and may, if reasonable, suspend any performance for which he has not already received the agreed exchange until he receives such assurance.

  • The promisee may treat as a repudiation the promisor’s failure to provide within a reasonable time such assurance of due performance as is adequate in the circumstances of the particular case.

That said, if Sabin did NOT request adequate assurance or DID receive adequate assurance, Sabin could NOT suspend or cancel, and if he cancels, he is liable to Hathaway, if Hathaway can prove that he could have performed.