1 Keyes 476 | NY | 1864
It was held, both by the referee and the\ Supreme Court at General Term, that the plaintiff was not entitled to recover merely because the work was not finished and the job completed at the time the building upon which the work was being done was destroyed by fire. To my mind, this is a very plain case in favor of the plaintiff. The decision, very properly, was not put upon the ground that the work was not completed within the time specified in the agreement, but upon the naked ground that the contractor, having failed to do all the work he had contracted to do,
This case falls exactly within this principle of law. Through whose default was it that the work was not completed according to the contract ? Certainly not that of Hitchings, the contractor; for he was ready and willing, and was in act of performing when prevented by the destruction of the building. He was a mere laborer upon the building, having no possession or control over it for any other purpose; and the destruction of it was through no act or agency of his. Manifestly the performance of the contract was prevented by the default of the other party, who furnished and provided the building upon which the work was to be done as far as the work had progressed, but failed to furnish or provide it for the completion of the work. It was his building, in his possession, and under his exclusive con
It is nothing whatever to the case to say that the building was not destroyed through Ms agency or fault. That fact is no test of the liability in an action like this. It would not excuse or shield the defendants from liability even were the action to recover as damages the profits wMch might have been made on that part of the work the performance of which was prevented. The destruction was not caused bv the act of God, as appears by the facts found; and a default from any other cause will not excuse non-performance.
This rule was applied and enforced by this court in Tompkins v. Dudley (25 N. Y.) very properly, undoubtedly, though the case was a very hard one for the defendants. The school-house which they had contracted to build was substantially finished, according to the contract, but it had not been accepted by the plaintiffs, a small 'amount of painting and the hanging of the window-blinds remaining to be done before the job was finished. In this situation the house took fire and was destroyed, and the plaintiffs were allowed to recover back moneys they had advanced on the contract, and damages for its non-performance. It was a casualty not provided against in the contract, which the defendants had bound themselves fully to perform. This rule, it will be seen, applies with fall force against the defendants in this action, but in no respect is it applicable to
The case of Menetone v. Athawes (3 Burr., 1592) is very much in point here. The plaintiff was employed to make certain specified repairs upon a vessel lying at his own shipyard. Before the repairs were fully completed a fire broke out in a neighboring store and extended to the vessel and destroyed it. The defendant in that case, as in this, contended that the plaintiff could not recover, because his agreement to repair was not fully performed. But it "was held that the plaintiff was entitled to recover pro tanto for the work and materials, as far as he had gone, in the performance of his undertaking. This seems to be the settled rule in all cases between bailor and bailee when the article is delivered to the latter, to be repaired or wrought into a new form, and is accidentally destroyed before the work is finished and ready for delivery, without the fault of the mechanic. The loss in such case falls upon the owner of the article, and lie must answer for the labor already bestowed and the materials if any, furnished. (2 Kent’s Com., 590; Story on Bailments §426, a; Gillett v. Mawmen, 1 Taunt., 131.) It may per
When full performance is prevented by the authority of the State, the party may recover for his labor and materials up to the time the State interferes and stops the work (Jones v. Judd, 4 Comst., 411.) I lay no stress whatever upon the fact, that the owner used the building more or less . while the work was in progress, because in this State the rule is well settled that use and occupancy constitute no ground of liability if the contract is not performed. (Brady v. Smith, 17 N. Y., 173.) And if the non-performance was occasioned by the act or default of the other party, use and occupancy are of no moment. ¡Nor is it of any consequence, in my judgment, that the defendant’s testator kept
I rest the right of the plaintiff to maintain his action distinctly upon the ground that his assignor was prevented from performing his contract by the default of the other party in failing to keep on hand and in readiness the building in which the work was to be done, and that the other party was clearly in default whether the building was destroyed with or without fault on his part. If these views are correct the action should have been sustained, and the plaintiff allowed to recover for his labor and materials, according to the contract, as far as he had gone, deducting the amount paid and perhaps any damages which the owner may have sustained in consequence of the non-performance by the time stipulated in the contract. The judgment must, therefore, be reversed, and a new trial granted, with costs to abide the event.
All concurring,
Judgment reversed.