Mineral Park Lance Co. v. Howard, 172 Cal. 289 (1916) p663.

contract formation: events after formation of a contract

• P was owner of land in a ravine.
• D had made a contract with the public authorities for the construction of a concrete bridge across the ravine
• In August 1911 the parties entered into a written agreement whereby P granted to the D the right to haul gravel and earth from P's land
• D agreed to take all that was necessary from P's land
• D only took 50,131 out of 114,00 cubic yards from P's land
• P alleged that any amount excess of earth and gravel taken was contained on P's land
• lower court found that D took all the land that was above water level

D appeals after a judgement in favor of P for $3,650. P sought to recover damages for D's failure to take from P's land all the necessary amount.

Do the facts justify the D in their failure to take from P's land all of the earth and gravel required?

The obligation to take out a given quantity, if it be not taken out, is excused if it appears that the land does not contain the stipulated quantity.

The facts justify D's failure to take all the land from P.

Land to be taken must be available for use. If its unavailability is such that it makes it not practical (an excessive and unreasonable cost) to take it is the same as being impossible to take. D was not binding themselves to take what was not there.