Lawing v. . Rintles
2 S.E. 252
N.C.
1887
Check Treatment
Davis, J.,

(after stating the facts). It is contended for the plaintiff, that he was entitled to pay for the material furnished, and the work and labor done on the buildings up to the time of their destruction by fire, and for this he cites many authorities; but upon examination they do not sustain the position. Brewer v. Tysor, 3 Jones, 183, referred to, is direct authority the other way. The Court say that the contract being an entire one, the plaintiff cannot recover unless he avers and proves an entire performance. The plaintiffs sought to relieve themselves of the obligation to perforin the entire contract, by reason of sickness, upon the maxim, that actus Dei neminem facit injuriam, but the Court said that did not excuse them, but when the case was again before the Court at a subsequent Term, 5 Jones, 173, it appeared that the contract was for work divided into three separate parts, for each of which a separate price was to be paid, and the Court said there was no reason why the plaintiffs should not be paid for the work done on the two parts which had been finished, according to the contract.

Instead of the plaintiff’s right to recover, the weight of authority would require him to rebuild, and thus perform his contract.

In Adams v. Nichols, 19 Pick., 275, it is said: “ It is not material to consider whose property the house was before the-conflagration. The defendant had contracted to build and finish the house on the plaintiff’s land. After the conflagration he might have proceeded under the contract, and if he had completed the house, according to the terms of his agreement, the plaintiff would have been bound to perform his. part of the contract.”

*354 In this case, it was held, that the contractor was not discharged by the conflagration from the duty to build. In School District v. Dauchy, 25 Conn., 531, the defendant had contracted to build a school-house by a day named — -just before the day, it was set fire to by lightning and wholly destroyed. It was held, that the non-performance of the contract was not excused. The whole question seems to be well and fully considered in the case of Tomkins v. Dudley, 25 New York, 272. The defendant had guaranteed the performance of a contract by a builder, to erect a school-house, which he failed to perform. The Court says: “ In justification of such non-performance, he alleges the destruction of the building by fire, an inevitable accident, without any fault on his part. The law is well settled, that this is no legal justification for the non-performance of the contract.” This is the conclusion at which the Court arrived in that case, after a review of numerous decisions u|>on the question, and we are well satisfied in this case, that the plaintiff has no right to recover.

When the contract was entered into, he could have protected himself against loss by fire, either by a stipulation in the contract or by insurance, but as this was not done, it is his misfortune. The position that the plaintiff -was entitled to the money received by the defendant upon the policy of insurance which she had on the building, was not seriously insisted upon in this Court. By the insurance she was only indemnified against loss, on account of the payments which she had made.

There was no error, and the judgment must be affirmed. Let this be certified.

No error. Affirmed.