44 Barb. 54 | N.Y. Sup. Ct. | 1864
Was the assignor of the plaintiff excused, under the circumstances of this case, from completing the work which he contracted to perform ?
From the earliest period of our legal history, no excuse for
If the assignor of the plaintiff could have been excused at all for the non-performance of the contract in this case, the excuse must have been on the ground that the performance became impossible by the act of God.
The accident of fire has, indeed, rendered it impossible
The English cases, to which the counsel for the plaintiff refers, are not in point, and if they were, and contravened the principle which I have traced, they would not be law. I take the same view of them which the referee takes in his opinion. In Menetone v. Athawes, (3 Burr. 1592,) it does not appear that there was a contract to complete the repairs on the ship; it must be inferred that the shipwright was employed from day to day to perform the work. The dock, indeed, in which the ship was undergoing the repairs, belonged to the shipwright, but the owner of the ship had agreed to pay £.5 for the use of it; so that, as Mr. Justice Wilmot remarked, “ it was like a horse that a farrier was curing, being burned in the owner’s own stable.”
Mothing appears in that case inconsistent with the idea that the owner of the ship could have discharged the plaintiff on any day during the progress of the work, and could have employed any other shipwright to complete it. He in fact for the time being owned the dock.
In Lord v. Wheeler, (1 Gray, [Mass.] 282,) to which the counsel for the plaintiff so confidently refers, the court expressly state “ the precise ground on which the plaintiff can recover in this case is, that when the repairs upon the house were substantially done, and before the fire, the defendant by his tenant entered into and occupied it, and so used and enjoyed the labor and material of the plaintiff that such use and enjoyment were a severance of the contract and an ac
The judgment should be affirmed, with costs.
Leonard, Olorice and Sutherland, Justices.]