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Golfer recently converted a portion of his expansive backyard to a driving range and putting green, in order to practice golf, his favorite hobby. To maintain the range and green in an ideal golfing condition, in March of Year 1, Golfer hired Lawn Care Company to perform two specific tasks. One was to maintain the grass at between half an inch and one inch in height. The other was to specifically instruct its employees to inspect for, and repair or replace, any divots that Golfer’s clubs might knock out of the grass, so that the divots would not be noticeable. During negotiations, Golfer explained that divots were a pet peeve of his, and it was very important to him that the driving range be free of such blemishes. Once negotiations concluded, Golfer and Lawn Care Company both signed the following valid and binding contract:
Lawn Care Company agrees to maintain Golfer’s driving range and putting green at an even layer, keeping the grass between half an inch and one inch in height, and to inspect for and repair all divots on the driving range. This contract will run between April 1 and November 1 of Year 1. By the 5th of each month, Golfer will inspect the driving range, and on condition that he find no divots on the driving range, he will pay Lawn Care Company $500 by the 10th of each month.
In April, Lawn Care Company began sending employees to mow Golfer’s lawn. The parties thought, in their initial negotiations, that two mows per month would suffice. However, on April 28, Lawn Care Company emailed Golfer as follows:
We hope you’ve been enjoying the great golfing weather! We wanted to update you about some unusual consequences of our uncommonly pleasant weather. Grass in this area, at this time of year, typically grows about 1 inch per month, so ordinarily, our initial plan of two mows per month would keep your grass between one-half and one inch tall. However, because of unusually mild temperatures, with plenty of rain and dew at night, the grass has been growing twice as fast as normal! As a result, in order to keep your grass at the agreed length, we need to begin mowing once per week, which obviously means we’ll be incurring significantly more costs than we first thought. To that end, we would like you to pay us $750 per month instead of $500 per month, beginning in May.
Golfer replied that day, agreeing to Lawn Care Company’s proposal, so Lawn Care Company began sending employees once per week. Golfer paid each monthly bill from Lawn Care Company on time, except that Golfer withheld payment on the November bill, because he had found unrepaired divots throughout the contract period. Furthermore, Golfer sued Lawn Care Company for breach of contract due to the unrepaired divots. He also sought a refund of $250 per month for the bills from May to October, arguing that Lawn Care Company had overcharged him by that amount. Lawn Care Company promptly countersued Golfer for breach of contract, for not paying November’s bill.
Lawn Care Company sent four employees, on a rotating basis, to service Golfer’s backyard. It admits that, in May, it realized it forgot to instruct one of those employees to inspect for and repair any divots. That employee never repaired any divots, and she worked at Golfer’s range and green during about one-fourth of Lawn Care Company’s total visits. During the remaining visits, employees discovered and repaired many divots.
What will Golfer argue
as to why he is not required to pay Lawn Care Company any money towards November’s bill? Will Lawn Care Company present
any counter-argument(s)? Who is likely to succeed? Explain.
Is the April 28th purported modification to the contract enforceable? Why or why not? Explain.