12 Mo. App. 536 | Mo. Ct. App. | 1882
delivered the opinion of the court.
This is an action by an incorporated company, to recover of defendant, which is a corporation, the value of certain pews and other wood-work of a church edifice, and labor and materials furnished by plaintiff to defendant. The cause was tried by the court, a jury being waived, and the finding and judgment were for the defendant.
There are record admissions and testimony tending to show the following state of facts : Defendant was erecting a house of worship in St. Louis. It let out the work to different contractors, having separate contracts with the mason, carpenter, and other mechanics. The general direction of the work was under the control of an architect and superintendent employed by defendant. Defendant kept the building insured, increasing the insurance from time to time as the building progressed, insuring far enough ahead to cover any work after it was done. On January 2, 1879, the building caught fire from some unexplained accident. The answer alleges that this was without the fault or negligence of defendant, and the reply denies this, though it admits that the fire was accidental. The fire destroyed the church and everything in it.
The written contract between plaintiff and defendant provides that plaintiff, shall make, finish, and put up complete, furnishing all labor and materials, the pews in the audience-room and in the gallery, the pulpit, and the screen over the pulpit and baptistry, and the organ front: the work to be of a described character and quality, and subject to the approval of the architect of defendant; for the sum of $4,800, to be paid on the completion and acceptance of the work. The work is to be put up complete, on or before
At the time of the fire, defendant was engaged in putting up the pews. The gallery pews were partly up ; none of the pews in the audience-room were up, but they were scattered about oil the floor ; two pieces of the organ loft were in the building, but not put up. The baptistry-screen was partly up, and all of it was in the building. It would have taken five men about two weeks to set in order in the church what remained of plaintiff’s contract. While the pews were being put up, some slight change from the contract was made in the construction of some pews, at the suggestion of the building committee of defendant; this change was nearly completed when the fire broke out. The work and materials furnished, were of the character and quality required by the contract, and reasonably worth the amounts charged in the bill of particulars filed with the petition. Some payments had been made, and the balance claimed remains unpaid.
If money is to be paid when the work is done, non-performance of the work is a good defence ; and where there has been a partial performance only, and not a performance of what is substantial in the contract, as a general rule, plaintiff cannot recover. The rule always applies where the non-performance is voluntary on the plaintiff’s part. But where the non-performance is caused by the defendant, or by the act of God, the rule is not always applied, and in this country (Cutter v. Pavell, 6 Term Rep. 320), has not been followed, but, in contracts for service, sickness and death have been held to excuse the non-performance of an entire contract.
If a workman undertakes to build a house, to be paid when the house is done, he cannot demand payment until he has complied with his contract; and if the house is destroyed by inevitable accident, it will be the loss of the contractor. And so we held in Richardson v. Shaw (1 Mo. App. 234), that,.where the contract-price of the building is
The case before us is not, however, an undertaking to build a house, but a contract to do certain wood-work in an erection under the control of defendant and not under the control of plaintiff. There is a difference. In the first case, the defendant makes no agreement as to the existence of the building; in the last case, the work contracted for cannot be done unless the building exists while it is being done and until it is completed, and it may be said that there is an implied agreement that the building shall be in existence as a condition precedent to doing the work upon it. It happens that contracts on their face appear to be obligatory on one party only, when it was manifestly the intention of the parties, and a part of the consideration, that there should be a corelative obligation on the other party. And “ if the act to be done by the party binding himself can only be done upon a corresponding act being done or allowed by the other party, an obligation by the latter to do or allow to be done the act or thing necessary for the completion of the contract, will be necessarily implied.” Per Hough, J., in Lewis v. Insurance Co., 61 Mo. 538.
It is a maxim that res perit domino suo; and the rule of the common law is the civil-law rule, that if one is employed in making up the materials or adding his labor to the property of the employer, the risk is with the owner of the thing with which the labor is incorporated. And upon grounds applicable to the general contract of hire, in the absence of any special agreement or general usage, if the thing for which materials were furnished is destroyed before the work is done, the employer must pay for the work and materials, though they are lost to him. Mene~
Brumby v. Smith (3 Ala. 123) was decided in 1841, and is directly in point for respondent. A workman agreed to complete the carpenter-work on a house, and to receive a certain sum on the completion of the work, his employer furnishing the materials. The house and materials were destroyed by fire, without the fault of the workman, the house being in the possession of the employer. It is held that the workman could not recover a pro rata compensation. The case is put solely upon the ground that, by the express terms of the contract, the labor was not to be paid for until the work was completed, and that, whenever this is rendered impossible without the act of the employer, there can be no recovery.
But principles applicable to the case at bar seem to have keen much more carefully considered and applied in the case of Appleby v. Myers (1 L. R. C. P. 614), decided in 1866. In that case, plaintiffs contracted with defendant to erect, upon premises in defendant’s possession, a steam engine and Ettachinery, the work being by the contract
On appeal, in the Exchequer Chamber (2 L. E. C. P. 650), the judgment was reversed. On the ^argument, the
Niblo v. Binsse (1 Keyes, 477) was decided in 1864, in New York, reversing the supreme court. The premises were destroyed by an accidental fire, without any fault of plaintiff or defendant. Plaintiff undertook to put in steam-pipes and heaters at a price stipulated to be paid, and was working on the job when the fire occurred. It was held that, where the owner of the property retains possession, there is an implied obligation for him to have the premises ready for the labor to be performed upon them, and that the destruction of the premises put the defendant in default, and that plaintiff was entitled to recover for the work performed up to the time of the fire. In this case, the history of the litigation is just the reverse of that in Appleby v. Myers. The referee and the supreme court found for defendant (44 Barb. 54)', holding that accidental fire is not to be called the act of God in such a sense as to excuse from the performance of a contract. The court held that the impossibility which excuses must arise without human intervention. In this ground, the supreme court differs from the English judges, who all held that the fire occurring without plaintiff’s fault excused him from performing the contract, and relieved him from all liability for its non-performance.
In Illinois, while it is held (Schwartz v. Saunders, 46 Ill. 18) that, where one undertakes under a contract to do a thing not of itself impossible, he must do it before he can reap any advantage of the contract, it is nevertheless held (Rawson v. Clark, 70 Ill. 656) that, where one, under a contract with the owner of a building to put into it certain iron-work, had completed the work, except putting it into the house, and the house was in coui*se of erection, and was not ready to receive the iron-work when it was completed, and the building was burned before the iron could be put in, the workman was entitled to recover, as he was not in default and the defendants were bound to provide a building to receive the iron-work, and they, and not plaintiff, are to be held to have assumed the risk of a destruction of the building by fire.
And in Massachusetts (Lord v. Wheeler, 1 Gray, 282), it was held that a workman who had contracted to repair a house for a certain sum, and who had nearly completed the repairs when the house was destroyed by an accidental fire, was excused from the completion of his contract and entitled to recover for the repairs due. But this case is expressly put upon the ground that when the repairs were substan
In Texas they do not follow Appleby v. Myers, but hold, in accordance with the established doctrine of that state as to the apportionability of contracts, that, where one has undertaken to furnish materials and do the wood-work to finish defendant’s brick dwelling and to turn over the building complete by a certain day, for the specified gross sum, if the building is destroyed without plaintiff’s fault, by fire, while his work is unfinished, he may recover for the work and materials furnished.
The weight of authority in America certainly authorizes the conclusion that, on the facts of this case as we have stated them, plaintiff was entitled to recover. And we think that reason as well as authority preponderates m favor of this view. Plaintiff had not control of the building, and defendant had; plaintiff had no authority over his co-contractors and their employees, nor the right to exclude anybody from the building who might be there by the permission of the building committee. He could not take steps to guard against fire, as might be done by those having control of the building. The fire happened by human agency, and not from any irresistible vis major. It is not pretended that the house was struck by lightning; and, in stipulating that this wood-work should be completed, it must have been understood by plaintiff, as it must also have been understood by defendant, that this was upon the implied condition that the building should stand until the expiration of the time accorded to plaintiff within which he was to complete his work. Where the owner of the property retains possession and contracts for work to be done upon it while in his custody, there is, we think, an implied obligation resting upon him to have it in readiness for the work to be performed upon it, and the plaintiff was not bound to provide in the contract for the default of the
The instructions need not be set out or commented upon. We think that the court erred in giving a declaration of law to the effect that, upon the pleadings and evidence, plaintiff' is not entitled to recover. Other instructions were given which cannot be reconciled with the views expressed in this opinion.
Our attention is called to the statutory provision that no “ suit shall be maintained against any tenant or other person in whose house or apartment fire shall accidentally take place; nor shall any recompense be made by any such person for any damages occasioned thereby. Eev. Stats., sect. 667. This section was not intended to have any application to a case such as that before us. Plaintiff does not seek to recover for damages done to him by the fire, but seeks to recover the value of his work, labor, and materials furnished to defendants, notwithstanding their destruction.
The judgment is reversed and remanded.