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.
A common illustration of the doctrine, that one who makes performance by the other impossible, or delays it, thereby discharges the contract, or excuses delay, is found in building contracts. If the owner by his own acts delays the contractor in completing the building, the owner cannot recover damages, nor can he enforce a covenant for paying liquidated damages in case of delay.1 If the contractor has himself suffered damages by reason of the delay, he may recover such damages from the owner.2 Thus, a delay caused by the failure of the owner's architects to furnish plans and specifications,3 or by the owner's delay,4 or refusal5 to furnish necessary levels, or by the failure of the owner to furnish materials agreed to be furnished;6 or to do the masonry work agreed upon,7 or to construct a foundation,8 or piers,9 or metal work,10 or roof timbers,11 agreed to be constructed by the owner and necessary to be constructed before the contractor can proceeed with his work cannot make the contractor liable to the owner, either for actual damages or under a clause providing for liquidated damages. So, a contractor is not liable for damages for delay caused by failure of the owner to furnish a right of way,12 or to construct a road over which the contractor is to haul material.13 Conversely, an owner who has to do certain work upon the house himself, may recover from the contractor, although he has not done such work, where the contractor delayed performance and kept control of the house, and the work to be done by the owner could not well be done until the contractor had completed his work.14 So the contractor is not liable for damage caused by the owner's furnishing defective plans, thereby making certain repairs and changes necessary.15 So delay in inspection provided for by the contract and necessary before the contractor can proceed discharges him from liability for delay.16 So if a building is to be paid for when the owner is satisfied that no lien? have been placed on the property, the owner cannot withhold payment because of a lien on the property for material bought under such contract from a third person by the owner.17
21 Burt v. Ins. Co., 181 U. S. 617; affirming without report, 105 Fed. 419; 44 C. C. A. 548; 59 L. R. A. 393.
22 Serber v. McLaughlin, 97 111. App. 104.
23 Used by one drilling a well under contract. Thompson v. Brown, 106 la. 367; 76 N. W. 819.
24 Made by a vendor of realty under an executory contract of sale, to the vendee in possession, thereby he gave up possession and brought suit for the value of improvements. Cole v. Alexander, 113 Ga. 1154; 39 S. E. 477.
1 Wyandotte, etc., Ry. v. Bridge Co., 100 Fed. 197; 40 C. C. A. 325; King, etc., Mfg. Co. v. St. Louis, 43 Fed. 768; 10 L. R. A. 826; Bly-mer Ice Machine Co. v. McDonald, 48 La. Ann. 439; 19 So. 459: Davis v. Light Co., 57 Minn. 402; 47 Am. St. Rep. 622; 59 N. W. 482; Murphy v. Orne, 185 Pa. St. 250; 39 Atl. 959.
3 Mahoney v. Church, 47 La. Ann. 1064; 17 So. 484. So under a contract to construct machinery according to plans, which were not furnished in time. Jeffrey Mfg. Co. v. Iron Co., 93 Fed. 408.
4 Boden v. Maher, 105 Wis. 539; 81 N. W. 661.
5 Olson v. Ry., 22 Wash. 139; 60 Pac. 156.
6 Davis v. Light Co., 57 Minn. 402; 47 Am. St. Rep. 622; 59 N. W. 482.
7 Underwood v. Wolf, 131 111. 425; 19 Am. St. Rep. 40; 23 N. E. 598.
8 Standard Gaslight Co. v. Wood, 61 Fed. 74
9 King, etc., Mfg. Co. v. St. Louis, 43 Fed. 768; 10 L. R. A. 826.
10 Langford v. United States, 95 Fed. 933.
11 Vaughn v. Digman (Ky.), 43 S. W. 251.
12 Chicago, etc., Ry. v. Clark, 92 Fed. 968; 35 C. C. A. 120.
13 Corbett v. Anderson, 85 Wis. 218; 54 N. W. 727.
14 Cavode v. Principal, 110 Mich. 672; 68 N. W. 987.
15 Coon v. Water Co., 152 Pa. St. 644; 25 Atl. 505.
16 Erickson v. United States, 107 Fed. 204.