Same - Destruction Of The Subject-Matter

Where the continued existence of a specific thing is essential to the performance of the contract, its destruction from no fault of either party operates as a discharge.88 A leading case on this subject was one in which the defendant had agreed to let the plaintiff have the use of a music hall for the purpose of giving concerts upon certain days. Before the days of performance arrived the hall was destroyed by fire, and the plaintiff sued the defendant for losses arising from the consequent breach of contract. The court held that, in the absence of any express stipulation on the matter, the parties must be taken "to have contemplated the continuing existence as the foundation of what was to be done," and that, therefore, "in the absence of any expressed or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor."87 Accordingly, where the contract is for the sale of specific goods, which perish without the seller's fault before the day appointed for delivery, the seller is excused from his obligation to deliver, and the buyer from his obligation to pay.88 And a contract, letting space in a department store is discharged by the destruction of the building in which the store is conducted.89

Salkey, 89 I11. 412, 31 Am. Rep. 93. See "Contracts," Dec. Dig. (Key-No.) § 18; Cent. Dig. § 97.

85 Esposits v. Bowden, 7 El. & Bl. 763. See "Contracts" Dec. Dig. (Key-No.) § 808; Cent. Dig. §§ 1409-1443.

86 Taylor v. Caldwell, 3 Best & S. 826; Lord v. Wheeler, 1 Gray (Mass.) 282; Walker v. Tucker, 70 I11. 527; The Tornado, 108 U. S. 342, 2 Sup. Ct. 746, 27 L. Ed. 747; Ward v. Vance, 93 Pa. 499. Cf. Nicol v. Fitch, 115 Mich. 15, 72 N. W. 988, 69 Am. St. Rep. 542. Most courts hold that, where a person has agreed to make repairs or do other work on a specific building or chattel, its destruction before the work is finished will discharge the contract, and the workman may recover for what he has done, and it is immaterial that the work was only to be paid for on completion. See Whelan v. Clock Co.. 97 N. Y. 293; Hindrey v. Williams, 9 Colo. 371, 12 Pac. 436; Butterfield v. Byron, 153 Mass. 517, 27 N. E. 667, 12 L. R. A. 571, 25 Am. St Rep. 654; Cleary v. Sohier, 120 Mass. 210; Cook v. McCabe, 53 Wis. 250, 10 N. W. 507, 40 Am. Rep. 705; Lord v. Wheeler, 1 Gray (Mass.) 282; Wells v. Calnan, 107 Muss. 514, 9 Am. Rep. 65; Haynes v. Baptist Church, 88 Mo. 285, 57 Am. Rep. 413; Weis v. Devlin, 67 Tex. 507, 3 S. W. 726, 60 Am. Rep. 38; Hysell v. Manufacturing Co., 46 W. Va. 158, 33 S. E. 95; Angus v. Scully, 176 Mass. 357, 57 N. E. 674, 49 L. R. A. 562, 79 Am. St. Rep. 318; Hayes v. Gross, 9 App. Div. 12, 40 N. Y. Supp. 1098, affirmed, 162 N. Y. 610, 57 N. E. 1112. But see Appleby v. Myers, L. R. 2 C. P. 651; Brumby v. Smith, 3 Ala. 123; Sie-gel, Cooper & Co. v. Eaton & Prince Co., 165 I11. 550, 46 N. E. 449; Huyctt & Smith Mfg. Co. v. Chicago Edison Co., 167 I11. 233, 47 N. E. 384, 59 Am. St. Rep. 272. See "Contracts," Dec. Dig. (Key-No.) § 309; Cent. Dig. §§ 1444-1446.