dissenting:
I disagree with the majority’s interpretation and application of Section 458 of the Restatement of Contracts, and with its conclusion that the contempt order should not have been received in evidence.1 In my opinion, instead of granting a new trial, we should affirm.
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Section 458 of the Restatement of Contracts2 states: A contractual duty or a duty to make compensation is discharged, in the absence of circumstances showing either a contrary intention or contributing fault on the part of the person subject to the duty, where performance is subsequently prevented or prohibited
(a) by the Constitution or a statute of the United States, or of any one of the United States whose law determines the validity and effect of the contract, or by a municipal regulation enacted with constitutional or statutory authority of such a State, or
(b) by a judicial, executive or administrative order made with due authority by a judge or other officer of the United states, or of any one of the United States.
The manner in which these principles might be applied is explained in Illustration 3 as follows:
A contracts with B to sell and deliver to him a specific automobile on a certain day, time being of the essence. C, by false allegations of ownership of the machine induces a court having jurisdiction to enjoin A from delivering the machine. In spite of diligent effort A is unable to secure dissolution of the injunction until it is too late to fulfil his contract with B. A’s duty is discharged. If C had just *343grounds for obtaining the injunction, or if A failed in diligent effort to secure its dissolution, A would not be discharged.
It will be observed that Illustration 3 does not exactly track the black letter of Section 458; indeed, the particular significance of the present case is that it brings this apparently up-to-now unobserved discrepancy to light. Section 458 requires the court to determine whether in fact “performance [was] subsequently prevented or prohibited” by a judicial order. Illustration 3 requires the court to determine only whether the promisor made a “diligent effort ... to secure dissolution of the injunction.” Furthermore, it is not clear from Section 458 whether a promisor’s consent to or acquiescence in a court order will constitute “contributing fault,” whereas under Illustration 3 it seems clear that such consent or acquiescence would be inconsistent with, and would preclude a finding of, a diligent effort to secure dissolution of the order.
I believe that Illustration 3 presents a better summary of the law as it may be found in the cases than does Section 458. In Peckham v. Industrial Securities Co., 31 Del. (1 W.W.Harr.) 200, 113 A. 799, 802 (1921), an oft-cited case on this subject, the court stated:
The promisor is not required to do something that is impossible or unlawful; and he is bound to respect the decree of a court which he can neither change nor remove. But in an honest effort to carry out his agreement he must, if possible, procure the dissolution of the injunction, or secure the dismissal of the interfering proceeding by removing therefor. ... It must appear that the injunction was not secured by the act or fault of the defendant, and also that an effort has been made by the defendant, to dissolve the injunction or that such an effort would have been futile, if made. (Emphasis added.)
See St. Luke’s House, Inc. v. Digiulian, 274 Md. 317, 336 A.2d 781, 787 (1975); Kuhl v. School District No. 76 of *344Wayne County, 155 Neb. 357, 51 N.W.2d 746 (1952); Cush-man and Wakefield, Inc. v. Dollar Land Corp. Unlimited, 36 N.Y.2d 490, 369 N.Y.S.2d 394, 330 N.E.2d 409 (1975).
Illustration 3,1 suggest, is a fair paraphrase of Peckham ; both require the court to determine whether a promisor should be discharged by looking to the effort, if any, that the promisor made to have the court’s order dissolved. This determination is quite different from that required by Section 458, which requires the court to determine whether in fact the promisor’s performance was prevented by the court’s order.
I also believe that Illustration 3 presents a better statement of the law as it should be than does Section 458. Where a promisor is seeking discharge from a contractual obligation, he should have the burden of showing that he did everything reasonably within his power to perform-in the words of Peckham, that he made “an honest effort to carry out his agreement.” Under Illustration 3 a promisor must make this showing much more clearly than under Section 458; the illustration thus better serves the policy of effectuating the performance of contracts and avoiding forfeitures if at all possible. Carsek Corporation v. S. Schifter, Inc., 431 Pa. 550, 246 A.2d 365 (1968); Barraclough v. Atlantic Refining Co., 230 Pa.Super. 276, 326 A.2d 477 (1974).
In view of these considerations, I should decide this case by applying not Section 458 but Illustration 3. Another way to make this point is to say that I should decide this case by applying Section 458, but only after construing the section to mean not what it literally says but what Illustration 3 says it says.
Here, the period in question is from October 6,1975, when this court, in response to a petition by the Public Utility Commission, issued a supersedeas ordering appellant-the promisor and defendant below-not to supply gas to appel-lees, until November 22, 1976, when this court affirmed the lower court’s order holding appellant in contempt, whereup*345on appellant resumed supplying gas to appellees. This period may in turn be divided into two shorter periods: from October 6, 1975, to March 6, 1976, when appellees filed a petition to remove the supersedeas; and from March 6,1976, when we refused to remove the supersedeas, to November 22, 1976.
The difficulty in applying Section 458-if it is construed to mean what it literally says-may be seen if one focuses on March 6, 1976. At that time appellant alone opposed appel-lees’ petition to remove the supersedeas; the Public Utility Commission, which had obtained the supersedeas, did not oppose removal. The majority says that appellant’s opposition to removal “is all” that appellant did, at 229, and this “all” did not “take [] [appellant] out of the protection” of Section 458, at 229. I assume that the majority means that appellant’s opposition did not contribute to this court’s refusal to remove the supersedeas, i. e., that we should have refused appellees’ petition to remove the supersedeas even if appellant had not opposed removal. I agree that if in fact this is true, then, under Section 458, if construed literally, appellant should be discharged from liability for the period of March 6,1976, to November 22, 1976. However, how can the majority say that it is true in fact? Who knows, and who can tell, what factors we thought decisive when we decided not to remove the supersedeas? I submit that whether a promisor should be discharged of his contractual liability should not depend upon the outcome of so uncertain a venture as reading the judicial mind.
If one applies Illustration 3, such a venture becomes unnecessary, and the case may be decided by reference only to facts of record. For it is clear from the record that at no point did appellant make a “diligent effort” to dissolve this court’s supersedeas.
Certainly appellant’s resistance to appellees’ petition of March 6, 1976, asking this court to remove the supersedeas, was inconsistent with a “diligent effort” to dissolve the *346supersedeas. Thus, appellant should not be discharged of its liability for the period from March 6, 1976, to November 22, 1976.
Nor should appellant be discharged of its liability for the period from October 6, 1975, to March 6, 1976. Although appellant did not join in the Public Utility Commission’s petition for a supersedeas, neither did it oppose the petition; only appellees filed an answer in opposition to the petition. N.T. 198. It seems fair to say that appellant sat back and watched as the Public Utility Commission succeeded in getting a supersedeas. Again, such action-or inaction-was inconsistent with a “diligent effort” to dissolve the superse-deas.
In short, the majority, by its application of Section 458, has given appellant the best of all worlds: so long as appellant did not itself request the supersedeas, it could benefit from it, and could oppose its removal, without liability. I regard such a result as both unfair to appellees and contrary to the settled case law that a promisor will not be discharged of his contractual liability unless he has made a “diligent effort” to prevent the order in question-injunction or supersedeas-from becoming, and remaining, effective.
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I also cannot agree with the majority that a new trial is justified in this case because the lower court received in evidence its August 12,1975, contempt order. This evidence may have been highly prejudicial to appellant, but appellant did not object when the evidence was offered. N.T. 62-63. If counsel does not object to the admission of evidence, he may not argue on appeal that the admission was error. See Capan v. Divine Providence Hospital, 270 Pa.Super. 127, 410 A.2d 1282 (1979); Dilliplaine v. Lehigh V. Tr. Co., 457 Pa. 255, 322 A.2d 114 (1974).
The judgment of the lower court should be affirmed.
. In passing, I agree with the majority’s discussion on damages, but believe it to be somewhat incomplete. The majority does not discuss the decisions of this court and the Supreme Court that suggest that lost profits are unduly speculative where a new business is concerned. See Exton Drive-In, Inc. v. Home Indemnity Co., 436 Pa. 480, 261 A.2d 319 (1969), cert. den., 400 U.S. 819, 91 S.Ct. 36, 27 L.Ed.2d 46 (1970); Pines Plaza Bowling Inc. v. Rossview Inc., 394 Pa. 124, 145 A.2d 672 (1958); Pollock v. Morelli, 245 Pa.Super. 388, 369 A.2d 458 (1976). These cases are arguably applicable here since appellees were newcomers to the mobile home business when appellant cut off their gas supply. Nevertheless, unlike the plaintiffs in Exton Drive-In, Pines Plaza Bowling Inc., and Pollock, appellees were able to show that there was significant interest in their product or service before the contract breach occurred. Appellee Gregory Kasemer and Karen Kasemer testified that several people called prior to the gas shutoff to inquire about the mobile homes. Appellant argues that this testimony was highly speculative since these people may not have rented the homes even if there had been gas. That may well have turned out to be true, but I think it better that the jury *342heard this evidence itself and decided its weight, rather than the court excluding it entirely. Accord S. Jon Kreedman and Co. v. Meyers Bros. Parking-West Corp., 58 Cal.App.3d 173, 130 Cal.Rptr. 41 (1976); Vogue v. Shopping Centers, Inc., 402 Mich. 546, 266 N.W.2d 148 (1978); Fera v. Village Plaza Inc., 396 Mich. 639, 242 N.W.2d 372 (1976). Contra Handley v. Guasco, 165 Cal.App.2d 703, 332 P.2d 354 (1958); Adrian v. Rabinowitz, 116 N.J.L. 586, 186 A. 29 (1936); Weiss v. Revenue Bldg. and Loan Assn., 116 N.J.L. 208, 182 A. 891 (1936).
. As the majority indicates, at 228, Section 458 has been cited with approval in this state. See e. g. Burkus v. Henshaii, 386 Pa. 478, 126 A.2d 722 (1956); Olyphant Borough School District v. American Surety Company of New York, 322 Pa. 22, 184 A. 758 (1936); In Re Craven’s Estate, 169 Pa.Super. 94, 82 A.2d 60 (1951). The precise issue presented by the present case, however, has not been decided.