79 A.D. 379 | N.Y. App. Div. | 1903
The lumber all the time belonged to the lumber company, and was stored in the plaintiff’s yard for its convenience, but the possession was really that of the lumber company, and the shipments were to be at its option and forty per centum of the contract price was to be deferred until after shipment.
The question is whether the plaintiff is entitled to recover for the value of the labor actually expended in manufacturing and
The crucial test is in this class of cases : Who was in default ? The title to the logs was in the lumber company. The lumber manufactured therefrom was also owned by it. The company furnished the property which was to be enhanced in value by the labor of the plaintiff. If it failed to furnish the logs for any cause it was in default. If there was a like failure as to the lumber the plaintiff could not perform. Without the fault of the plaintiff he is prevented from completing his contract. The fact that it is entire and its completion was to precede payment are not important because the lumber company, upon whom the obligation rested, is unable, by reason of the fire, to supply him the lumber to ship. It is urged that this is a harsh rule, as each party without any claim -must lose. But the situation of the parties to the agreement is not alike. The owner may protect himself by insurance. The plaintiff has no title and no lien and hence has no insurable interest. The plaintiff cannot perform because the defendant does not possess the property essential to render performance possible.
The counsel for the respondent invokes the principle that by the terms of the agreement complete performance must be accomplished before appellant may exact the enforcement of his compensation beyond the sixty per centum already paid, and if he expected to be relieved from the stringency of his agreement he should have protected himself against loss from the destruction of the property by fire by appropriate clauses in the contract. The counsel relies upon Harmony v. Bingham (12 N. Y. 99); Tompkins v. Dudley (25 id. 272); Herter v. Mullen (159 id. 28, 43), and kindred cases. In Tompkins v. Dudley (supra) the defendant contracted with the plaintiffs as trustees to erect a schoolhouse for a specified sum, payment in part to be made as the work progressed. Before the building was completed it was burned to the ground, and the plaintiffs were allowed to recover the sums paid to the defendant upon the contract. It will be observed that the builder during the performance of his agreement had the schoolhouse in his possession and
We think the present case is to be distinguished in principle from those cited and others of cognate application. As has been already suggested, the company in this case not only owned the property and had it under its control, but it was to produce it for shipment. To be sure, the plaintiff undertook unqualifiedly to deliver this lumber and to complete his agreement before payment in full became due, but this undertaking must be construed in the light of the fact that it was the lumber of the company, and before plaintiff could perform he miist have the lumber to deliver. This principle is reinforced by the fact that the lumber remained piled after it had been sold for about ten days, and during this period the election of the time of delivery was with the company. The condition referred to, limiting necessarily the absolute undertaking of the plaintiff to ship the lumber, must have been within the contemplation of the parties when they made their agreement. (Stewart v. Stone, 127 N. Y. 500, 507.)
The authorities recognize the distinction adverted to. In Niblo v. Binsse (1 Keyes, 476), which seems to be a leading case, the plaintiff’s assignor contracted to do certain plumbing in a house owned by the defendant’s testator, to be completed at a given date, and part of the compensation to be paid as the work progressed, a certain sum upon its completion and the balance when it was tested and proved adequate. During the performance of the work the building burned without the fault of either party, and the contractor was permitted to recover for the work performed. The recovery was upheld upon the ground that the owner was in default in not furnishing the building, which was necessary to enable the contractor to carry out his agreement. In the same line are Whelan v. Ansonia Clock Co. (97 N. Y. 293); Hayes v. Gross (9 App. Div. 12); Dexter v. Norton (47 N. Y. 62); Butterfield v. Byron (153 Mass. 517) ; Haynes v. Second Baptist Church (88 Mo. 285; 57 Am. Rep. 413); Jones v. Judd (4 N. Y. 412). The present case, it seems to us, is much stronger for the plaintiff than any of those enunciating the principle upon which liability attaches, for in each of them the contractor or laborer had a lien for his services or materials on the thing upon which they were wrought or attached.
The doctrine in these cases does not conflict with the rule that one who agrees to perform before receiving compensation must comply with his undertaking, and if he seeks to be protected against inevitable calamity, must so stipulate in his agreement. That provision presupposes the lumber company has at all times done on its part whatever is essential to enable the plaintiff to perform strictly and fully.
An action was commenced by the plaintiff against the Star Lumber Company to recover for the claim contained in the complaint in this action. During its pendency the company became insolvent, a receiver of its property was appointed and the plaintiff
Our conclusion is that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Adams, P. J., Williams, Hisoock and Hash, JJ., concurred.
Judgment reversed and new trial ordered,. with costs to the appellant to abide event, on questions of law only, the facts having been examined and no error found therein.