If the party prejudiced by the destruction of part of the subject-matter is willing to perform regardless of the fact of such destruction the party not prejudiced thereby cannot invoke such fact as a discharge. Thus destruction of buildings upon certain land after a contract for the sale thereof does not discharge the contract if the vendee is willing to carry out the contract as if the buildings were still standing.1 So a contract to remodel a building using old walls was partly performed when the walls fell. The owner restored the building to the condition in which it was just before the accident, and demanded that the contractor complete it. Such facts were held not to discharge the contractor.2

14 Central Lithographing Co. v. Moore, 75 Wis. 170; 17 Am. St. Rep. 186; 6 L. R. A. 788; 43 N. W. 1124.

15 Stewart v. Stone, 127 N. Y. 500; 14 L. R. A. 215; 28 N. E. 595.

16 Romero v. Newman, 50 La. Ann. 80; 23 So. 493.

17 Pinkham v. Libby, 93 Me. 575; 49 L. R. A. 693; 45 Atl. 823. 18 Contra, that such fee could under similar circumstances be recovered. Tatro v. Bailey, 67 Vt. 73; 30 Atl. 685.

19 Wilcox v. Assurance Society, 173 N. Y. 50; 93 Am. St. Rep. 579; 65 N. E. 857.

20 Nally v. Nally, 74 Ga. 669; 58 Am. Rep. 458; Lahey v. Lahey, 174 N. Y. 146; 95 Am. St. Rep. 554; 61 L. R. A. 791; 66 N. E. 670.