118 Wis. 306 | Wis. | 1903
The rule is a legal commonplace that he who contracts to perform an entire work at an entire price can recover no compensation without completion of the work, although it become unexpectedly difficult, or even impossible, without fault of the other party. Cook v. McCabe, 53 Wis. 250, 10 N. W. 507; McDonald v. Bryant, 73 Wis. 20, 26, 40 N. W. 665; Goodman v. Baerlocher, 88 Wis. 287, 291, 60 N. W. 415; Williams v. Thrall, 101 Wis. 337, 341, 76 N. W. 599; McAlpine v. St. Clara Female Academy, 101 Wis. 468, 474, 78 N. W. 173; Adams v. Nichols, 19 Pick. 275; School Dist. v. Dauchy, 25 Conn. 530; Tompkins v. Dudley, 25 N. Y. 272. This rule would seem, upon first impression, to-conclude the rights of the parties before us, for plaintiff’s contract was entire to build a barn of the prescribed dimensions, which he finally did. Defendant makes no objection to paying the contract price. Why should he pay more? He got nothing but that which plaintiff had bound himself to furnish for the agreed price of $125. As answer to that query, plaintiff contends that the original contract was terminated when, by vis major, without’ fault of either party, the partially completed barn was destroyed, whereby, as he urges, the contract to build that barn became impossible. In this last suggestion lurks a fallacy. It was not that barn of which the framework was blown down, nor indeed, any particular barn, which plaintiff had contracted to build, but a barn of specified description. That such contract was not rendered im
The mere fact that the lumber and materials are not included in the price of the entire contract to build the building, but are to be purchased and paid for in addition, is not sufficient to absolve plaintiff from his contract dirty to complete and deliver the barn before he earns any part of the contract price, unless, indeed, there' be some breach of the duty to supply such material, of which nothing exists in this case. True, the fact that the owner was to' furnish some of the materials for the masonry is mentioned as a circumstance in support of the conclusion reached in Cook v. McCabe, supra; but it was not a controlling, nor, indeed, a very important, one. The fact that the owner was to build part of the building to which the masonry was to be added by the plaintiff was sufficient of itself to warrant the decision, and was not substantially aided by the furnishing of lime and sand to be used by the mason.
From the views thus stated, no conclusion is possible, except that plaintiff can recover nothing specifically for the work done prior to the destruction of the building, on the assumption that the original contract then became terminated; nor, upon the theory that it continued, can he recover for the additional expense and labor imposed by reason of the storm.
By the Court. — The judgment is modified by reducing the indebtedness adjudged to one hundred twenty-six and 7-100 dollars ($126.07), and the total to two hundred eighteen and 68-100 dollars ($218.68), and, as so modified, is affirmed; appellant to recover costs in this court.