This section is from the book "A Commentary On The Law Of Contracts", by Francis Wharton. Also available from Amazon: A Commentary On The Law Of Contracts.
The fact that a thing on which work is expended, as a divisible contract of labor, has been destroyed without fault of either party, before the work is complete, is no defence to a suit for the payment of the work so far as done,5 nor can, a fortiori, the Work to be paid for, though thing worked on is subse-
1 Wald's Pollock, ut supra, 371, citing Leake on Contracts, 351,460; New comb v. Brackett, 16 Mass. 161; Buttrick v. Holden, 8 Cush. 233; Harriss v. Williams, 3 Jones, L. 483; S. P., Beswick v. Swindells, 3 A. & E. 883.
2 Telegraph Despatch Co. v. McLean, L. R. 8 Ch. 658; Maclure ex parte, L. R. 5 Ch. 737.
3Infra, sec 575, 606.
4 Infra, sec 606.
5 Infra, sec 714; Garretty v. Brazell, 34 Iowa, 100; Schwartz v. Saunders, 46 111. 18; Rawson v. Clark, 70 111. 656; Cook v. McCabe, 53 Wis. 250; Hollis v. Chapman, 36 Tex. 1. That subsequent impossibility of performance is a defence to a contract of work, see supra, sec 322. In Cook v. McCabe, ut supra (see statement in 25 Alb. L. J. 246), the plaintiffs, who were builders, were to assist in building a house for the defendant, and as their special share were to do all the mason work thereon, and such building work as defendant was not to do, and to furnish such material as defendant was not to furnish. Defendant was to furnish some of the material for the mason work, and to haul certain of that furnished by plaintiffs. They were not to do any of the carpenter or joiner work or any of the painting or glazing. They were to have the entire work done by them completed by October 1, 1878, and were to receive their pay, which was to be $580, after the completion of the work. The contract stipulated for $250 damages in case either party failed to comply therewith. The complaint alleged that by reason of a neglect on the part of defendant to do his portion of the work, plaintiffs were hindered, but that they had nearly completed the work they were to do on the 19th of October, 1878; that on the 20th of October, without fault on their part, the building was destroyed by fire. They asked to recover for the value of the work and materials they had furnished. The answer, among other things, denied performance of the contract. Judgment was given for plaintiffs, from which defendant appealed. This was affirmed by the supreme court. From the opinion of Cassaday, J., the following passages are extracted: build a house on the land of another, and the house was, before its completion, destroyed by fire without his fault, it was held that he was not thereby discharged from his obligation to fulfil his contract.' Adams v. Nichols, 19 Pick. 275.
"So 'where a person contracted to money paid by the owner to the operative for such partial performance be recovered back.1 The quesquently destroyed.
"Such cases are distinguishable from one where the contractor agrees to repair another's house already built, and it burns before completion of the repairs. Lord v. Wheeler, 1 Gray, 282; Wells v. Calnan, 107 Mass. 517. But the case at bar is not one of an entire contract to complete an entire building. It is more like Brumby v. Smith, 3 Ala. 123, in which it was held that ' where a workman agrees to complete the carpenter's work on a house, and to receive a certain sum on the completion of the work, his employer furnishing the materials, and the house and materials were destroyed by fire, without the fault of the workman, the house being in the possession of the employer, the workman could not recover a pro rata compensation for the work actually done.'
"The opinion in that case is based upon Cutter ?;. Powell, 6 Durnf. & East, 320, and Menetone v. Athawes, 3 Burrows, 1592. In Cutter v. Powell, the sailor was to be paid the sum named, ' provided he proceed, continue and do his duty on board for the voyage;' and that case, in the language of Allen, J., in Wolfe v. Howes, 20 N. Y. 200, ' is distinguishable in this: that by the peculiar wording of the contract it was converted into a wagering agreement, by which the party, in consideration of an unusually high rate of wages, undertook to insure his own life, and to render at all hazards his personal service during the voyage, before the completion of which he died.'
"Lord Kenyon, in deciding Cutter v. Powell, refers to the peculiar terms of the contract, and says ' it was a kind of insurance.' Page 324. See Taylor v. Laird, 25 L. J. Ex. 329. In the other case referred to - Menetone v. Athawes - the shipwright took the ship into his own dock for repairs, the owner agreeing to pay a sum named for the use of the dock, and also for the repairs; and it was held that 'the value of repairs may be recovered though the ship be burnt in dock.'
"In Niblo v. Binsse, 3 Abb. N. Y. App. Dec. 375; S. C, 1 Keyes, 476, it was held that ' if the owner of a building contracts for labor upon it, he is under an implied obligation to have the building ready and in a condition to receive the labor contracted for; and if, before the work is completed, the building is destroyed by fire, without the fault of the contractor, the owner is in default, and the contractor can recover for all that was done up to the time of the fire.' In that case, as well as this, the time of performance had been extended by the mutual assent of the parties to the contract. Schwartz v. Saunders, 46 111. 18, was a case where ' the plaintiff entered into a contract with the defendant to do the carpenter work and furnish the materials therefor upon a brick building; the mason work was to be done by another and independent contractor. After the brick work was nearly completed and a part of the carpenter work done, the brick walls were blown down. Held, that the loss of the carpenter work fell tion, under such circumstances, depends upon the divisibility of the contract. If the contract be divisible, and if a part of upon the defendant.' The court properly distinguished the case from some of the cases cited above; on the ground that ' the plaintiff had not undertaken to erect and finish this building and deliver it.'
 
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