237 F. 80 | 8th Cir. | 1916
In this action by the government upon a contract and bond for the construction of levee work on the lower Mississippi, the cpntractor and his sureties set up, as an excuse for a failure to restore a part of the work destroyed by flood, “that said flood was an act of God, beyond human foresight to guard against, and was not due to negligence or the default of defendants.” The government’s demurrer to the defense was overruled, it stood thereon, and judgment went for defendants.
“It is to be understood that portions of the levee upon which payments have been made, but which have not been accepted as herein provided, shall, if damaged or destroyed, be repaired or replaced by the contractor at his own expense. * * * All damage or injury to work, resulting from floods or other causes before the work has been received by the contracting officer, shall be sustained by the contractor.”
The general rule is that, where one contracts absolutely and unconditionally to create and 'deliver a finished work to the acceptance of another, he is not relieved by casualties commonly denominated acts of God. See Berg v. Erickson, 234 Fed. 817, - C. C. A. -, and the cases cited. But the case here does not evert need this rule of construction, because there was an express agreement that the contractor should bear all damage by floods. Certainly he could not say that ordinary floods only were meant, for as against them the ordinary care and diligence which is impliedly required of every one in all activities would have sufficed.
The judgment is reversed, and the cause is remanded for further proceedings in accordance with this opinion.
