Toshi is the owner of Hama, a sushi restaurant in Venice. Toshi contracted in writing with Fishco, a fish distributor, to buy 50 pounds of toro (which is a yellow fin tuna). At the time the contract was signed, Toshi orally said to Fishco, Wedo have an understanding that Kifune, our chef, Must approve the quality of the fish before I will pay you: Fishco acknowledged Toshis request and responded, If you say so: Thereafter, Fishco delivered the yellow fin tuna to Toshi. After inspecting the fish, Kifune refused to give his approval because the toro was spotted instead of its customary shiny skin. As a result, Toshi refused to accept and pay for the fish.Fishco brought a breach of contract action against Toshi because he refused to pay for the fish delivery. How should the court rule on Toshis offer to prove, over Fishcos objection, that Kifune refused to approve the toro that was delivered?
A. The evidence is admissible to show frustration of purpose. B. The evidence is admissible to show that the written agreement was subject to an oral condition precedent. C. The evidence is barred because the written contract appears to be a complete and total integration of the parties agreement. D. The evidence is barred because the oral agreement is within the statute of frauds.
The evidence is admissible to show that the written agreement was subject to an oral condition precedent.-where the parties agree that a condition precedent must occur before the contract is effective, it is generally agreed that thefailure of the condition to occur may be shown despite what otherwise would be deemed a total integration. thus, even if there is a merger clause, a party can show that the instrument was handed over to another with an oral condition attached to delivery. the theory is that the agreement is not to take effect until the condition occurs, and thus there is no contract to be added to or contradicted until that time. here, toshi
will be permitted to introduce evidence of kifunes refusal to approve the fish since the agreement was subject to this condition precedent.