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.
The right to enforce the contract against the party who hag not performed is not affected by the fact that performance has not benefited him as much as he had expected.1 The question in such cases is whether the party performing a valid contract has done what he agreed to do, and not whether the adversary party has made a wise bargain, or received a financial benefit therefrom. The risk of loss is one which every party to a contract must take for himself. Thus if one agrees to pay money to a third person for the use of the adversary party2 or to deposit money in a specified bank3 and he does what he agrees to do, he is discharged from liability even if the adversary party is unable to enforce payment from such third person or such bank. So one who agrees to bring an action and does so discharges his liability, although a hearing on the merits is delayed longer than was expected.4 So one who agrees to apply for certain lands to the board of land commissioners and who does so is discharged, although his application is rejected and he takes no appeal, if none was contracted for.5 So one who performs a building contract can recover, without reference to the actual value of the building constructed, even if it is worth but a third of the contract price.6 So if a building is constructed in accordance with the terms of the contract the contractor can recover, even though owing to defects in the specifications the performance does not accomplish the results expected by the owner.7
1 Thompson v. Searcy, 57 Fed. 1030; May Mantel Co. v. Blowpipe Co., 93 Ga. 778; 21 S. E. 142; Sully v. Pratt, 106 La. 601; 31 So. 161; Knoeh v. Bernuth, 145 N. Y. 643; 40 N. E. 398; Wallace v. Williams (Tenn.), 69 S. W. 267; Schwede v. Hemrich, 29 Wash. 124; 69 Pac. 643; Perkins v. Bank, 17 Wash. 100; 49 Pac. 241.
2 Knoch v. Bernuth, 145 N. Y. 643; 40 N. E. 398.
3 Perkins v. Bank, 17 Wash. 100; 49 Pac. 241.
4 Wallace v. Williams (Tenn.),
69 S. W. 267. (A contract by lessor with lessee to bring an action to evict a third person from adjoining premises of lessor's.)
5 Schwede v. Hemrich, 29 Wash. 124; 69 Pac. 643.
6 Thompson v. Searcy County, 57 Fed. 1030; 6 C. C. A. 674.
7 Carroll County v. O'Connor, 137 Ind. 622; 35 N. E. 1006; 37 N. E. 16; Schliess v. Grand Rapids, 131 Mich. 52; 90 N. W. 700; Mac-Knight, etc.. Co. v. New York, 160 N. Y. 72; 54 N. E. 661; Harlow v. Homestead, 194 Pa. St. 57; 45 Atl.
A contractor who under protest erects the foundation for a bridge as required by the proper officials can recover, although it subsequently settles due to a defective construction.8 So one who constructs a wall in freezing weather when required to do so by the owner, and conforms to plans and specifications is not liable for defects due to the freezing of the mortar if he has not guaranteed that the wall will stand the weather.9 So one who furnishes machinery in accordance with his contract may recover, though owing to the defective working of appliances furnished by the other party the expected result is not obtained.10 Thus an architect may recover for plans furnished in accordance with his contract, though the owner makes no use of them and receives no benefit therefrom.11 If the contractor guarantees certain results from his performance under certain specifications he is liable if such results are not produced, even if such failure is due to inherent defects in the specifications.12 Wherever possible the courts prefer to construe such guaranty as conditioned on the possibility of producing such results under such specifications. Thus a contract to make a watertight cellar,13 or reservoir,14 or roof,15 has been held to be performed, though owing to defects in the plans furnished by the owner such result was not obtained. So a contract to dig a well not specifying the flow of water to be obtained, is performed by obtaining a flow even if insufficient for the needs of the owner; and the contractor can recover.16 Thus if "deep strata water" is to be obtained and is obtained in the required quantity the owner takes the risk of such water's not being suitable for his needs.17 But if the purpose for which the well was to be sunk was known to both parties and it was a term of such contract by implication that a supply of water suitable for such purpose was to be obtained, failure to obtain a supply sufficient for such purpose is a breach.18 So one who agrees to furnish a certain kind of chattel, such as machinery to be built according to specifications furnished by the vendee,19 furnaces,20 elevators in which a larger motor 21 or deeper cushions22 than those provided for in the contract should have been specified, a refrigerating machine though defective because the owner did not furnish a cinder foundation as he had agreed to do,23 or because the specific refrigerating machine contracted for had not sufficient capacity,24 or boilers, though not capable of the pressure desired,25 nor having the heating surface contracted for, if made in exact accordance with specifications ;26 or such as marble for slabs,27 and who furnishes exactly what he agreed to furnish may recover although the chattel proves unsuitable for the use intended for it by vendee.
87; Fairman v. Ford. 70 Vt. Ill; 39 Atl. 748.
8 Carroll County v. O'Connor, 137 Ind. 622; 35 N. E. 1006; 37 N. E. 16.
9 Sehliess v. Grand Rapids, 131 Mich. 52; 90 N. W. 700.
10 May Mantel Co. v. Blowpipe Co., 93 Ga. 778; 21 S. E. 142. (A pipe furnished by A to carry off dust and shavings from B's machinery, which fails to work because the fan furnished by B and set by A is defective.)
11Sully v. Pratt, 106 La. 601; 31 So. 161.
12 Construction of ice plant. Bry-son v. McCone, 121 Cal. 153; 53 Pac. 637.
13 MacKnight, etc.. Co. v. Now York, 160 N. Y. 72; 54 N. Y. 661.
14 Harlow v. Homestead, 194 Pa. St. 57; 45 Atl. 87.
15 Fairman v. Ford. 70 Vt. Ill; 39 Atl. 748.
16 Omaha, etc.. Co. v. Burns, 49 Neb. 229; 68 N. W. 492.