This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Under a contract which by the intent of the parties requires for its performance the continued existence of a specific subject-matter, the destruction of such subject-matter is an event not within the meaning of the contract, unless one of the parties has assumed the risk of its destruction; and such destruction therefore operates as a discharge where neither party has assumed such risk.1 Thus a contract for the use of a music hall in the future, is discharged by the destruction of such building.2 So a contract to ship a cargo by a specified steamer is discharged where such steamer is so injured by the perils of the sea, without the fault of the contractors, as to make it impossible for her to arrive within the time agreed upon.3 So a lease of apartments, which gives no interest in the soil, and amounts only to a license to use such apartments, is discharged by the destruction of the building in which such apartments are situated.4 This rule must be distinguished from the rule applying to the lease giving an interest in the soil and binding the lessee expressly to pay rent. Such lease is not discharged by the destruction of the building leased, in the absence of some specific provision therefor, or of some positive statute. A contract to perform labor upon a building belonging to another is discharged by the destruction of such building before such contract is completely performed,5 as a contract to repair a building.6 So the falling of the walls of a brick building discharges a contract to construct wood-work therein.7 The question of the right of the contractor to recover for the work done up to the time of such destruction is elsewhere discussed.8 This rule must be distinguished from the rule that one who agrees to construct and complete a building upon the land of another cannot recover if such building is destroyed before it has been accepted by the owner of the land.9 A contract to build a barn upon a foundation furnished by the owner is a contract for the construction of a complete building and not for work to be done upon the building of another, and hence is not discharged by the destruction of such barn.10 Under a contract to build an annex to an existing building the burning of the building and the annex operates as a discharge.11 A contract to sell a specified chattel is discharged by the destruction of such chattel without the fault of the vendor before the title passes.12 If the title to the chattel passes, the subsequent destruction does not discharge the vendee from his liability for the purchase price.13 Thus when A makes a quantity of lithographic posters for B under a contract by which B is to take them by a certain time and to pay for them then, and B does not take them or pay for them at such time, B is liable to A for the agreed price, and the fact that after such time the posters were destroyed by fire without A's fault does not discharge B from liability.14 So the destruction of a chattel bailed, without the fault of the bailee, discharges him from liability to redeliver the same.15 So a contract by which A, a planter, is to grind the sugar-cane from his plantation at his own sugar house and to have the syrup refined at B's refinery is discharged as to the remainder of the term of years for which it was to run by the destruction of the sugar house.16 A contract for the service of a stallion provided that if the first service should prove fruitless there should be the privilege of return free during the season. The first service proved fruitless and return was demanded during the season. In the meantime the stallion had died. This was held to discharge the liability of the owner of the stallion.17 The owner of the stallion was not bound to return the service fee as for failure of consideration.18 A covenant in an insurance contract requiring a surrender of the policy in order to change the beneficiary is held to be discharged if the policy is stolen without the fault of the owner19 or the beneficiary refuses to return the former certificate.20
9 Wilson v. Wilson, 36 Cal. 447; 95 Am. Dec. 194.
10 Schilling v. Darmody, 102 Tenn. 439; 73 Am. St. Rep. 892; 52 S. W. 291.
1 Taylor v. Caldwell, 3 Best & S. 826; Siegel v. Eaton, etc., Co.. 165 111. 550; 46 N. E. 449; W7alker v. Tucker, 70 111. 527; Knight v. Bean, 22 Me. 531; Gilbert, etc., Co. v. Butler, 146 Mass. 82; 15 N. E. 76; Eliot National Bank v. Beal, 141 Mass. 566; 6 X. E. 742; Dexter v. Norton, 47 N. Y. 62; 7 Am. Rep.
415; Powell v. Ry., 12 Or. 4S8; Yerrington v. Greene, 7 R. I. 589; 84 Am. Dec. 578.
2 Taylor v. Caldwell, 3 Best. & S. 826.
3 Nickoll v. Ashton (1900), 2 Q. B. 298.
4 Alexander v. Dorsey, 12 Ga. 12; 56 Am. Dec. 443; Womack v. Mc-Quarry, 28 Ind. 103; 92 Am. Dec 306; Stockwell v. Hunter, 11 Met. 448; 45 Am. Dec. 220: Graves v. Perden, 20 Barb. (N. Y.) 100: Win-ton v. Cornish, 5 Ohio 477.
5 Chicago Edison Co. v. Mfg. Co., 66 111. App. 222; Butterfield v. Byron, 153 Mass. 517; 25 Am. St. Rep. 654; 12 L. R. A. 571; 27 N. E. 667; Dexter v. Norton, 47 N. Y. 62; 7 Am. Rep. 415; Weis v. Devlin, 67 Tex. 507; 60 Am. Rep. 38; 3 S. W. 726.
6Lord v. Wheeler, 1 Gray (Mass.) 282.
7 Schwartz v. Saunders, 46 111. 18.
8 See Sec. 1600.
9Cutcliff v. McAnally, 88 Ala. 507; 7 So. 331; Commercial Fire Ins. Co. v. Ins. Co.. 81 Ala. 320; 60 Am. Rep. 162; 8 So. 222; School District v. Dauchy, 25 Conn. 530;
68 Am. Dec. 371; Adams v. Nichols, 19 Pick. (Mass.) 275; 31 Am. Dec. 137; Trenton Public Schools v. Bennett, 27 N. J. L. 513; 72 Am. Dec. 373; Tompkins v. Dudley, 25 N. Y. 272; 82 Am. Dec. 349.
10 Voght v. Hecker, 118 Wis. 306; 95 N. W. 90.
11 Krause v. Crothersville, - Ind. -; 70 N. E. 264.
12 Ontario, etc., Association v. Packing Co., 134 Cal. 21; 53 L. R. A. 681; 66 Pac. 28; Dexter v. Norton, 47 N. Y. 62; 7 Am. Rep. 415.
13 Central Lithographing Co. v. Moore. 75 Wis. 170; 17 Am. St. Rep. 186; 6 L. R. A. 788; 43 N. W. 1124.