No. Trying to get a better deal isn't the same as breaking the first deal. S & S was the one that broke the contract by selling the project to someone else. The court said that Thermo was just playing hardball in negotiations; it never flat-out said, 'We refuse to do the deal unless you accept our new terms.' Because Thermo never clearly backed out, S & S was still legally bound to them and shouldn't have sold the project to another company.

Yes, S & S did break their promise to Thermo Electron. They had a deal with Thermo but sold the project to Montenay instead. The court looked at all the talks and agreements and decided that S & S's actions were wrong. They also agreed that Thermo should get money because they missed out on profits they could have made if the deal had gone through.

No. A party's attempts to negotiate different terms from those in a preliminary agreement do not amount to an anticipatory repudiation of the contract. Repudiation requires a definite and unequivocal manifestation of an intention not to perform under the contract, and hard bargaining or proposing changes does not meet this standard. The court reasoned that Thermo's actions could be permissibly viewed as hard bargaining rather than an outright refusal to perform under the January agreement. Thermo never insisted it would only perform on its new proposed terms. The legal standard for repudiation is high; it requires more than mere requests for changes or expressions of doubt. Furthermore, since the contract specified no closing date, Thermo was only required to perform within a 'reasonable time,' a fact-intensive question where the trial court's finding that Thermo's delay was not unreasonable was not clearly erroneous. Therefore, S & S was not relieved of its obligations and breached the contract by selling the project to Montenay.

Yes, the district court's finding that Thermo did not repudiate or unreasonably delay performance of the contract is not clearly erroneous. I affirm the lower court's judgment because the evidence can reasonably be interpreted in two ways, and the district court's choice between these interpretations is permissible. The record shows that Thermo's actions throughout the negotiations can be seen as hard bargaining rather than repudiation. While Thermo proposed changes to the original agreement, these proposals did not amount to a definite and unequivocal manifestation of intention not to perform. The delay in finalizing the deal can be attributed to legitimate negotiations over complex issues, such as the non-transferability of permits and the need to keep Schuyler in the project temporarily. Although S & S set a March 25 deadline, the evidence suggests this was not a firm deadline, and Thermo continued to express willingness to proceed with the deal. Regarding damages, the district court's award of $1.85 million based on Montenay's subsequent profit from selling the project is not clearly erroneous. While there are some differences in the purchase prices paid by Thermo and Montenay, these do not necessarily invalidate the comparison, especially considering the additional operating rights retained by Montenay. Given the limited evidence available and the legal rules allowing for rough comparisons in damage calculations, the district court's conclusion is adequately grounded in the evidence.

Thermo Electron Corp. v. Schiavone Construction Company

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