In the case of Fairmount Glass Works v. Cub Fork Coal Co., 1932, the U.S Supreme Court ruled in favor of Fairmount Glass Works. The dispute arose when Cub Fork Coal Company failed to deliver coal as per their contract with Fairmount due to a strike by miners and subsequent violence that made it impossible for them to fulfill their obligations. They claimed this constituted "impossibility of performance," which should excuse them from liability for breach of contract. However, the court held that such circumstances did not absolve them from responsibility because they had assumed the risk under their agreement with Fairmount and were therefore liable for damages resulting from non-delivery.

In the dissenting opinion for Fairmount Glass Works v. Cub Fork Coal Co., Justice Stone argued that the majority's decision to reverse and remand was based on a misinterpretation of Kentucky law, which he believed did not require an explicit agreement in order to establish a contract. He pointed out that under Kentucky law, acceptance of goods or services could be considered implicit agreement to pay for them. Therefore, by accepting coal from Cub Fork Coal Co., Fairmount Glass Works had effectively entered into a contract with them and should be held liable for payment. Furthermore, he disagreed with the majority's assertion that there was insufficient evidence to determine whether or not such an implied contract existed between the two parties; instead arguing that this issue should have been left up to jury discretion rather than being decided upon by judges.