Praxair Inc v. Hinshaw & Culbertson

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1960
Praxair, Inc.,
Plaintiff-Appellant,
v.
Hinshaw & Culbertson,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 3079--Wayne R. Andersen, Judge.
Argued September 27, 2000--Decided December 20, 2000
Before Posner, Coffey, and Kanne, Circuit Judges.
Posner, Circuit Judge. Praxair, the plaintiff in
this diversity suit for legal malpractice
governed by Illinois law, appeals from the grant
of summary judgment to the defendant, Hinshaw &
Culbertson ("Hinshaw" for short), its former law
firm. Praxair (actually a predecessor
corporation, but we’ll suppress that detail for
the sake of simplicity) was the defendant in a
breach of contract suit brought by Credit
Agricole, a French bank. That suit, in which
Praxair was represented by Hinshaw, ended in a
judgment for Credit Agricole of almost $4
million, which we affirmed in Caisse Nationale de
Credit Agricole v. CBI Industries, Inc., 90 F.3d
1264 (7th Cir. 1996). In granting summary
judgment in the present case, the district judge
ruled that Praxair had failed to show that, had
it not been for Hinshaw’s alleged malpractice,
Caisse Nationale would have been decided
differently. In other words, Praxair had failed
to show that the malpractice had made it any
worse off, and if that is right then of course
the Hinshaw firm has no tort liability.
Credit Agricole’s suit had grown out of a swap
contract that it had made with Praxair on
February 18, 1991. The contract was negotiated by
the New York and Illinois offices of Credit
Agricole and the Illinois office of Praxair.
During the term of the contract, which was to
expire on January 16, 1994, Praxair was to pay
Credit Agricole interest at a fixed rate on $35
million (Canadian, not U.S., dollars), while
Credit Agricole was to pay Praxair interest at a
variable rate, to be reset every three months,
tied to the interest rate on Canadian bankers’
acceptances (notes). The principal amount was
purely notional; that is, it was not transferred,
but was simply the base for calculating how much
interest each party owed the other. The parties
periodically netted their mutual obligations: if
the variable rate had risen above the fixed rate,
Credit Agricole paid Praxair; if the fixed rate
had risen above the variable rate, Praxair paid
Credit Agricole. Thus the swap shifted from
Praxair to Credit Agricole the risk, both upside
and downside, of interest-rate changes during the
three-month periods between resettings of the
variable rate.
Simultaneous with the swap, Praxair granted
Credit Agricole an option, "exercisable between
9:00 a.m. and 5:00 p.m. EST up to and including
January 16, 1994," to extend the swap for an
additional two years on the basis of the Canadian
bankers’ acceptance rate on that day. We must
mention one more wrinkle. To hedge the interest-
rate risk that it was assuming, Credit Agricole
made a swap with another bank, Bankers Trust. In
that swap Credit Agricole committed to the fixed
rate and Bankers Trust to the variable rate.
Credit Agricole gave Bankers Trust an option to
renew the swap that was essentially identical to
the option that Praxair had given Credit
Agricole; it too could be exercised up to and
including January 16, 1994.
That day was a Sunday. The next day was a
business day in Canada but a public holiday under
both Illinois and New York law, and both states
provide that a contractual obligation which comes
due on a holiday may be performed on the next
business day without loss of contract rights
unless the parties provide otherwise either
expressly or by implication. N.Y. General
Construction Law sec. 25(1); 5 ILCS 70/1.11. The
next business day was Tuesday, January 18. Credit
Agricole attempted to exercise the option that
day. Praxair took the position that this was too
late, thus precipitating the suit by Credit
Agricole that Praxair lost.
In that suit Hinshaw had moved for summary
judgment on Praxair’s behalf without conducting
any discovery, discovery that would have brought
to light documents suggestive that Credit
Agricole itself may have believed that the
swaption expired on January 16, not January 18.
In support of the motion Hinshaw had submitted
merely a skimpy memorandum of law that said
little more than that "the Option Agreement
expresses the intent that The Option be exercised
by 5:00 p.m. EST on January 16, 1994. It wasn’t."
The memorandum acknowledged, contradicting the
flat statement that January 16 was the deadline,
that the underlying swap agreement (as opposed to
the swaption, that is, the option agreement)
defined a "business day," as opposed to a
holiday, for obligations denominated in Canadian
dollars as any day that was a business day in
Toronto, which January 17 was but January 16, a
Sunday, was not. So any payments or resets
scheduled for January 16 would not have to be
made until the next day. But, Hinshaw argued,
they could not be made any later than that. And
so the specification of Toronto business days in
the underlying swap contract was irrelevant
because Credit Agricole had not attempted to
exercise the option on January 17 but had waited
until the next day. The district court, seconded
by a panel of this court, found this argument
unpersuasive because "the terms of the option
contract evince no intent-- express or implied--
to alter the weekend/holiday rule" of New York
and Illinois. Caisse Nationale de Credit Agricole
v. CBI Industries, Inc., supra, 90 F.3d at 1274.
Given the location of the offices in which the
swaption was negotiated and signed, the governing
rule had to be the law of one of these two states
and it didn’t matter which one because they had
the same rule. Id. at 1271 n. 3.
Praxair argues that Hinshaw could have made a
much better argument for a January 16 or January
17 deadline and that had it done so this court
would have reached a different result in the
previous case. It is only the second proposition
that is in issue here; the district court did not
decide whether Hinshaw had actually been
negligent. Negligent legal representation is a
failure to meet minimum professional standards,
e.g., Transcraft, Inc. v. Galvin, Stalmack,
Kirschner & Clark, 39 F.3d 812, 815 (7th Cir.
1994); Bonhiver v. Rotenberg, Schwartzman &
Richards, 461 F.2d 925, 928 (7th Cir. 1972), and
is thus equivalent to what in Sixth Amendment
cases is called ineffective assistance of
counsel. Strickland v. Washington, 466 U.S. 668,
688 (1984); Lear v. Cowan, 220 F.3d 825, 829 (7th
Cir. 2000); Hernandez v. Cowan, 200 F.3d 995, 999
(7th Cir. 2000); People v. Kluppelberg, 628
N.E.2d 908, 917 (Ill. App. 1993). It is not
merely undistinguished representation.
Restatement (Second) of Torts sec. 299A, comment
e (1965). The summary judgment memorandum that
Hinshaw filed in Caisse Nationale was that, and
the failure to conduct any discovery may have
been a worse lapse. If Praxair’s allegations are
credited, moreover, as the procedural posture of
the case requires us to do, Hinshaw represented
itself as expert in complex financial matters. A
law firm or other professional entity that
represents itself to have special competence in a
particular matter commits itself to a standard of
care above the average for the profession as a
whole. E.g., Transcraft, Inc. v. Galvin,
Stalmack, Kirschner & Clark, supra, 39 F.3d at
815; Hays v. Sony Corp. of America, 847 F.2d 412,
419 (7th Cir. 1988); Sparks v. NLRB, 835 F.2d
705, 707 (7th Cir. 1987); Restatement (Second) of
Torts, supra, sec. 299A, comment d; 2 Ronald E.
Mallen & Jeffrey M. Smith, Legal Malpractice sec.
18.4 (4th ed. 1996). That is arguably what
happened here, and we’ll assume it is what
happened here. A lawyer is not negligent for
failing to make sophisticated economic arguments;
few lawyers are capable of making such arguments.
But a lawyer who holds himself out to his clients
as being capable of making such arguments is
bound to the standard of care of a lawyer having
that capability. It is a case of tort law merging
into contract law.
We shall thus assume that Hinshaw was negligent
and pass on to the issue of causation on which
the decision of the district court and the appeal
to this court are based. We’ll also brush by
Hinshaw’s alternative ground for affirmance--that
the two-year statute of limitations for bringing
a suit for legal malpractice in Illinois (whose
law the parties acknowledge governs the
limitations issue) ran not from the judgment
against Praxair in Caisse Nationale but from the
grant of summary judgment against Praxair in that
suit, which presaged its doom, or at the latest
from the denial of Praxair’s motion for
reconsideration, filed by new counsel; for by
that time it was apparent both that Hinshaw had
fallen down on the job and that a final judgment
adverse to Praxair was going to be entered. The
general rule regarding malpractice claims based
on the mishandling of litigation--and we consider
it a sound rule as well as one binding on us in
this diversity suit--is that the statute of
limitations does not begin to run until the trial
court enters a final judgment. Kaplan v. Shure
Brothers, Inc., 153 F.3d 413, 420-21 (7th Cir.
1998); Lucey v. Law Offices of Pretzel &
Stouffer, Chartered, 703 N.E.2d 473, 477-79 (Ill.
App. 1998). The reason is not that it is certain
then that the loser (the subsequent malpractice
plaintiff) has been hurt, because he may get the
judgment overturned on appeal; it is that it is
too difficult to identify an earlier point at
which he can be said to have been injured. Was it
when his lawyer failed to raise a dispositive
defense in the answer to the complaint? When he
failed to object to a crucial bit of evidence?
When he fainted during final argument? To avoid
these conjectures and resulting uncertainty about
when the statute of limitations began to run, the
courts give the malpractice plaintiff two years
from the date on which the trial court entered
the final judgment against him in the suit that
he claims his lawyer booted.
So we come at last to the critical issue of
causation. A plaintiff in a legal malpractice
suit is not required to prove to a certainty that
he would have won (or lost less) had it not been
for the negligence of its lawyer, but he must
show that a victory of some sort, even if just
partial, was more likely than not. Jones Motor
Co. v. Holtkamp, Liese, Beckemeier & Childress,
P.C., 197 F.3d 1190, 1193 (7th Cir. 1999);
Nicolet Instrument Corp. v. Lindquist & Vennum,
34 F.3d 453, 455 (7th Cir. 1994); Transcraft,
Inc. v. Galvin, Stalmack, Kirschner & Clark,
supra, 39 F.3d at 815; Glass v. Pitler, 657
N.E.2d 1075, 1081-82 (Ill. App. 1995). So we must
consider how important the Hinshaw firm’s
oversights were. Several were due to its failure
to conduct any discovery. Discovery is costly and
in cases in which the stakes are small, or there
is a clearly dispositive legal argument,
forbearing to conduct discovery is not
negligence. But the stakes were large in Credit
Agricole’s suit against Praxair, and while
Hinshaw did make an argument that the case should
be disposed of by reference to the "plain
language" of the contract, which specified a
deadline of January 16, the argument was hardly a
killer, given the rule in force in both cities
where the contract was negotiated that when a
contract specifies performance on a legal holiday
performance may be deferred to the next business
day. 5 ILCS 70/1.11; N.Y. General Construction
Law sec. 25(1); Caisse Nationale de Credit
Agricole v. CBI Industries, Inc., supra, 90 F.3d
at 1271-73; Hirsch v. Lindor Realty Corp., 472
N.E.2d 1024, 1025 (N.Y. 1984) (per curiam);
Providence Ins. Co. v. LaSalle National Bank, 455
N.E.2d 238, 240-41 (Ill. App. 1983).
Even without conducting discovery, Hinshaw
should have realized, as it surprisingly did not,
that February 18, 1991, when the swap and
swaption contracts were signed, was itself a
holiday in New York and Illinois but a business
day in Toronto. This fact implied, Praxair
argues, that the parties had assumed that the
next business day after January 16, 1994, would
be January 17 because it would be a business day
in Toronto albeit not in the U.S. states. And if
even minimally sophisticated in complex financial
transactions, rather than fully sophisticated as
it is alleged to have told Praxair it was,
Hinshaw would have realized that it was anomalous
for January 17 to be a business day for purposes
of the swap but not for purposes of the swaption.
Remember that the critical term of the swap if it
was renewed, the variable-interest rate that
Credit Agricole would be committing to, would be
determined on January 17. This would give Credit
Agricole, if free to postpone exercise of the
swaption to the eighteenth, 24 hours in which to
obtain and act on additional information about
likely interest-rate movements in the next three
months (that is, before the first resetting of
the variable-interest rate under the renewed
swap), while Praxair would have no corresponding
right. Suppose that at 5 p.m. on Monday, January
17, the current interest rate for Canadian
bankers’ acceptances was 6 percent and, given
that the rate was so high, Credit Agricole would
not consider exercising the option to renew the
swap, but that the next morning the rate plunged
to 5 percent, at which level Credit Agricole
would want to exercise; under its interpretation
of the swaption it could do so because January 18
was the first business day after January 16. Now
suppose the interest rate was only 5 percent on
January 17 and rose the next morning to 6
percent; presumably Credit Agricole would not
exercise the option. Credit Agricole, then, under
its interpretation of the swaption, was in a
heads I win, tails you lose position. It could,
without any cost to itself, delay for 24 hours to
see whether the interest rate fell. If it did
fall, Credit Agricole would be better off if the
swap was renewed; if the rate rose, it would be
no worse off because it would be free to refuse
to renew. Conversely, Praxair would be worse off
if the interest rate fell but no better off if it
rose. How likely is it that the parties would
have agreed to so one-sided a deal?
Also without need to conduct discovery, but
merely by reviewing Praxair’s own records,
Hinshaw would have discovered, first, that the
original draft of the swaption, which had been
drafted by Credit Agricole, had specified "NY
Banking Day" but that Credit Agricole had deleted
this in the draft it sent Praxair, and also that
the original draft of the swap agreement had
carried an expiration date of January 18 and this
had been changed in the final draft to January
16.
Had Hinshaw conducted discovery, it would
further have learned that when Bankers Trust had
tried on January 18 to exercise the identical
option to renew its swap with Credit Agricole,
Credit Agricole, which had the same position in
that swap as Praxair had in this one, had
asserted that Bankers Trust was too late, though
later it relented because Bankers Trust was a
steady customer and Praxair was not.
Praxair argues that if all this evidence (and
some other bits that we haven’t mentioned but
that would make no difference to our decision)
had been presented to the courts in Caisse
Nationale, they would have ruled that a trial was
necessary in order to determine whether the
swaption allowed Credit Nationale to defer
exercise to January 18. We disagree. When a
contract specifies a day for performance that
happens to be a Sunday or other legal holiday,
performance can be deferred to the next business
day in accordance with the law of the
jurisdiction applicable to the contract. Nothing
in the swaption itself or in the evidence
painstakingly gathered by Praxair in this
malpractice suit suggests that Credit Agricole
thought it had to exercise the option by the
close of business on January 17. True, Credit
Agricole took this position when Bankers Trust
tried to exercise its own option on the
eighteenth. But that was because it didn’t want
to renew its swap with Bankers Trust if, as
Praxair was asserting, Credit Agricole had lost
the right to renew the swap with Praxair, the
swap for which Credit Agricole’s swap with
Bankers Trust was a hedge. Praxair does not argue
that Credit Agricole was barred by the doctrine
of "mend the hold" from changing its position.
Gibson v. Brown, 73 N.E. 578, 582 (Ill. 1905);
Herremans v. Carrera Designs, Inc., 157 F.3d
1118, 1123 (7th Cir. 1998); Harbor Insurance Co.
v. Continental Bank Corp., 922 F.2d 357, 362-63
(7th Cir. 1990); Robert H. Sitkoff, Comment,
"’Mend the Hold’" and Erie: Why an Obscure
Contracts Doctrine Should Control in Federal
Diversity Cases," 65 U. Chi. L. Rev. 1059 (1998).
Nor is this a case of extrinsic ambiguity, that
is, a case in which knowledge of the real-world
context of a contract shows that the parties did
not mean what the contract, read acontextually,
seems to mean. Allendorf v. Daily, 129 N.E.2d
673, 680 (Ill. 1955); Interim Health Care of
Northern Illinois, Inc. v. Interim Health Care,
Inc., 225 F.3d 876, 879, 881-82 (7th Cir. 2000);
Rossetto v. Pabst Brewing Co., 217 F.3d 539, 542-
43 (7th Cir. 2000); AM Int’l, Inc. v. Graphic
Management Associates, Inc., 44 F.3d 572, 575
(7th Cir. 1995); International Union, United
Automobile, Aerospace & Agricultural Implement
Workers v. Skinner Engine Co., 188 F.3d 130, 145-
46 (3d Cir. 1999); Charter Oil Co. v. American
Employers’ Insurance Co., 69 F.3d 1160, 1167-68
(D.C. Cir. 1995). It was to Credit Agricole’s
advantage to be able to exercise the swaption as
late as January 18, given that the Toronto
exchange would be open the previous day. Its
interpretation is thus concordant with the real-
world setting of the contract.
Specifically, it is not a case of mutual mistake
(on which see, e.g., Barker v. Fitzgerald, 68
N.E. 430 (Ill. 1903); Grun v. Pneumo Abex Corp.,
163 F.3d 411, 421 (7th Cir. 1998)), a subdivision
of extrinsic ambiguity well illustrated by the
famous case of Raffles v. Wichelhaus, 2 H. & C.
906, 159 Eng. Rep. 375 (Ex. 1864). The contract
in that case referred to the ship Peerless and
each party had a different ship of that name in
mind. The ambiguity was not on the face of the
contract but in the relation between the words of
the contract and the world of ships. Litigation
might have established that the parties had in
fact the same ship in mind. In that event there
would have been no mutual mistake, in fact no
mistake at all.
The doctrine of mutual mistake is limited to
cases in which both parties were reasonable in
their inconsistent interpretations; cases, in
other words, of irremediable ambiguity; more
precisely, cases in which neither party is more
at fault than the other. "If neither party can be
assigned the greater blame for the
misunderstanding, there is no nonarbitrary basis
for deciding which party’s understanding to
enforce," so either party is allowed to abandon
the contract without liability. Colfax Envelope
Corp. v. Local No. 458-3M, Chicago Graphic
Communication Int’l Union, 20 F.3d 750, 753 (7th
Cir. 1994); see also Miller v. Taylor Insulation
Co., 39 F.3d 755, 760 (7th Cir. 1994). But a
party whose interpretation is a product of
carelessness cannot obtain relief unless the
other party was equally careless, for without an
equality of blame there is no basis for shifting
the loss by permitting rescission. Id.; Colfax
Envelope Corp. v. Local No. 458-3M, Chicago
Graphic Communication Int’l Union, supra, 20 F.3d
at 754. Professor Farnsworth cites authority that
lack of care does not bar a claim of mutual
mistake. E. Allan Farnsworth, Contracts sec. 9.3,
p. 630 (3d ed. 1999). But an asymmetrical lack of
care does. If one party is careless and the other
is not, the careless party cannot rescind,
because he has offered no reason why the court
should make him better off than his opponent.
Praxair was careless. It had only to look at the
calendar and know a minimum amount of choice of
law and of contract holiday-performance law in
order to realize that Credit Agricole could
exercise the swaption on January 18. It failed to
ascertain when it entered into the swaption
contract back in 1991 that January 16, 1994,
would be a Sunday and January 17 a holiday and
failed (whether through ignorance of what day of
the week that date was or through some other lack
of care) to insist that the swaption nevertheless
specify a deadline of January 17 for its
exercise.
In contrast, Credit Agricole was not careless.
Indeed, it may well have thought it had until
January 18 to exercise, in which event this is
not a case of mutual mistake for a more
fundamental reason than any we have touched upon.
When only one of the contracting parties was
mistaken, we have a case of unilateral rather
than mutual mistake. And unilateral mistake is
generally not a ground for rescinding or
reforming a contract. Tony Downs Foods Co. v.
United States, 530 F.2d 367, 373 (Ct. Cl. 1976);
Anderson Brothers Corp. v. O’Meara, 306 F.2d 672,
676-77 (5th Cir. 1962). That is implicit in the
doctrine of mutual mistake as we have explained
it. Exceptions are cropping up, as discussed in
Farnsworth, supra, sec. 9.4, but are inapplicable
when the other party reasonably relied on the
mistaken interpretation of the party seeking
rescission. Id., sec. 9.4, pp. 632-33. Credit
Agricole reasonably relied on its right to
exercise on January 18. The contract seemed
clearly to confer that right upon it. In any
event, Illinois flatly bars rescission on the
basis of a careless mistake. Rakowski v. Lucente,
472 N.E.2d 791, 794 (Ill. 1984); John J. Calnan
Co. v. Talsma Builders, Inc., 367 N.E.2d 695, 698
(Ill. 1973); Steinmeyer v. Schroeppel, 80 N.E.
564 (Ill. 1907).
Perhaps the strongest evidence that the mistake
may have been mutual rather than unilateral is
that an early draft of the proposed swaption
agreement, submitted by Credit Agricole, set the
expiration date at January 18. Praxair objected,
insisting that the contract expire on Sunday the
sixteenth. Credit Agricole relented, and the
contract as finally executed listed that date. We
say it is "perhaps" the strongest evidence
because the record does not contain that early
draft, only a description of it by an employee of
Praxair in his deposition. But, if true, it
implies that both parties thought they were
choosing a date other than the eighteenth. That
they knowingly chose a Sunday for expiration
implies that they either wanted it to expire then
or thought it would expire the next day, the
seventeenth, perhaps overlooking the fact that
the seventeenth was a public holiday in the
United States. If both parties thought the
contract would expire on either the sixteenth or
the seventeenth but overlooked the fact that the
seventeenth was a holiday, this would be a case
like Raffles, where the contract though seemingly
clear is actually incurably ambiguous because its
unambiguous language fails to distinguish between
two states of the world (business days and
holidays). And then Hinshaw’s negligence in
failing to conduct discovery that would have
brought these facts to light would be causally
related to Praxair’s loss of its lawsuit with
Credit Agricole.
The difficulty with this argument for reversal
is that Praxair hasn’t made it. As noted earlier,
it argues only that the parties changed the
expiration date of the swap from January 16 to
18, not the swaption. If anything, that change,
with no corresponding change in the expiration
date of the swaption, would imply that the latter
date was indeed the eighteenth, and not the
seventeenth or sixteenth. Now in fact the
expiration date of the swaption was changed too.
But Praxair does not argue this. Even its
argument, in any event unconvincing, about the
change in the expiration date of the swap comes
too late to be considered. It was not made in the
district court or in Praxair’s opening brief in
this court. It was first made in Praxair’s reply
brief. For all we know, Credit Agricole has a
compelling response. It has not had a chance to
respond. Foreclosing the opponent’s possibility
to refute an argument by failing to present the
argument in the trial court is one reason why an
argument must, with exceptions not applicable
here (jurisdictional arguments, comity arguments,
and, very occasionally, arguments of pure law,
Amcast Industrial Corp. v. Detrex Corp., 2 F.3d
746, 749 (7th Cir. 1993)), be made in the
district court to be preserved in the court of
appeals. E.g., Opp v. Wheaton Van Lines, Inc.,
2000 WL 1648903, at *5 n. 2 (7th Cir. Nov. 3,
2000); Herremans v. Carrera Designs, Inc., supra,
157 F.3d at 1122; Wikberg v. Reich, 21 F.3d 188,
191 (7th Cir. 1994); Clauson v. Smith, 823 F.2d
660, 666 (1st Cir. 1987).
Praxair argues rather pathetically that as this
was its first swap it should be excused by its
lack of the relevant commercial sophistication
from bearing the responsibility for the disaster
it failed to foresee. But a contracting party,
here Credit Agricole, is not to be penalized for
knowing more about the business that is the
subject matter of the contract than the other
party. A newcomer to a market is responsible for
learning enough about the market to be able to
survive in it; he cannot force his contracting
partners to educate him. See Sun Oil Co. v.
Wortman, 486 U.S. 717, 731 n. 4 (1988); Western
Industries, Inc. v. Newcor Canada Ltd., 739 F.2d
1198, 1202 (7th Cir. 1984); Gord Industrial
Plastics, Inc. v. Aubrey Manufacturing, Inc., 469
N.E.2d 389, 392 (Ill. App. 1984); Farnsworth,
supra, sec. 7.13, p. 486; Restatement (Second) of
Contracts sec. 221 and comment a (1981);
Elizabeth Warren, "Trade Usage and Parties in the
Trade: An Economic Rationale for an Inflexible
Rule," 42 U. Pitt. L. Rev. 515 (1981). This rule
makes especially good sense when it is obvious
that the market is a complicated one. Everyone
knows or should know that swaps are not for
novices. Praxair was careless in thinking it
could negotiate the shoals of swapdom without
bothering to acquaint itself with the norms and
customs, the traps and pitfalls, of the market
into which it had wandered. Failing to exercise
due care, Praxair had no basis in law for
shifting the consequences of that failure to
Credit Agricole. Better representation would not
have saved it from a judgment in Credit
Agricole’s favor for breach of contract.
Praxair argues alternatively that at the very
least Hinshaw should have advised it that it had
no defense against Credit Agricole in time to
allow Praxair to settle the suit, at a lower cost
than it incurred by going all the way to
judgment, simply by allowing Credit Agricole to
exercise the option, which it turns out would
have been worth less than the judgment that
Credit Agricole obtained. But Praxair had refused
to allow that exercise before it even hired
Hinshaw. The refusal was a repudiation of the
contract, entitling Credit Agricole to sue.
Having broken the contract, Praxair had no right
to insist that Credit Agricole comply with it.
Affirmed.