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 contract by which one party agrees to perform labor on the building of another is discharged by the destruction of such building, without the fault of either party, before such contract is performed,1 as a contract to repair a building,2 or to paint it,3 or to paper it,4 or a contract to construct a floor therein,5 or to install a heating system therein,6 or to remove an existing building.7 The falling of the walls of a brick building discharges a contract to construct woodwork therein.8 The question of the right of the contractor to recover for the work done up to the time of such destruction is elsewhere discussed.9
8 Romero v. Newman, 50 La. Ann. 80, 23 So. 403.
9 Pinkham v. Libby. 93 Me. 575, 40 L. R. A. 693, 45 Atl. 823.
10 Contra, that such fee could under similar circumstances be recovered. Tatro v. Bailey, 67 Vt. 73, 30 Atl. 683.
11 Wilcox v. Assurance Society, 173 X. Y. 50, 93 Am. St. Rep. 579, 65 N. E. 857.
12 Nally v. Nally, 74 Ga. 660, 58 Am. Rep. 458; Lahey v. Lahey, 174 X. Y. 146, 95 Am. St. Rep. 554, 61 L. R. A. 791, 66 X. E. 670.
11llinois. Chicago Edison Co. v. Mfg. Co., 66 Ill. App. 222.
Indiana. Krause v. Board of School Trustees, 162 Ind. 278, 102 Am. St. Rep. 203, 65 L. R. A. Ill, 70 X. E. 264.
Kansas. Carroll v. Bowersock, 100 Kan. 270, L. R. A. 1917D, 1006, 164 Pac 143.
Massachusetts. Butterfield v. Byron,
153 Mass. 517, 25 Am. St. Rep. 654, 12 L. R. A. 571, 27 X. E. 667.
Mississippi. Ganong v. Brown, 88 Miss. 53, 117 Am. St. Rep. 731, 40 So. 556.
New Hampshire. Dame v. Wood, 75 N. H. 38, 70 Atl. 1081.
New York. Dexter v. Norton, 47 X. Y. 62, 7 Am. Rep. 415.
Texas. Weis v. Devlin, 07 Tex. 507, 60 Am. Rep. 38. 3 S. W. 726.
Wisconsin. Halsey v. Waukesha Springs Sanitarium, 125 Wis. 311, 110 Am. St. Rep. 838, 104 X. W. 94.
2 Krause v. Board of School Trustees, 102 Ind. 278, 102 Am. St. Rep. 203, 65 L. R. A. Ill, 70 X. E. 264; Lord v. Wheeler, 67 Mass. (1 Cray) 282.
3 Ganong v. Brown, 88 Miss. 53, 117 Am. St. Rep. 731, 40 So. 556.
4 Ganong v. Brown, 88 Miss. 53, 117 Am. St. Rep. 731, 40 So. 556.
5 Carroll v. Bowersock. 100 Kan. 270, L. R. A. 1917D, 1006, 164 Pac. 14a.
This rule must be distinguished from the rule that one who agrees to construct and to complete a building upon the land of another can not recover if such building is destroyed before it has been completed and accepted by the owner of the land.10 If the building contract provides for payment in instalments as the work progresses, and reaches certain specified stages, the destruction of the building does not prevent the contractor from recovering the instalments which were due by the terms of the contract at the time that the building was destroyed.11 It seems to be assumed that if the contractor offers to rebuild the building which has been destroyed, the property owner is liable in damages if he refuses to permit the contractor to perform. In cases of this sort, performance is possible in accordance with the original terms of the contract except as to time; but the fact that performance according to the time fixed in the original contract is practically impossible seems to be disregarded in determining the rights of the parties. This rule is not limited to personal liability, but it prevents the contractor from asserting a lien against the realty on which the building stood before it was destroyed.12 Since a subsequent instrument executed by one party to a contract can not modify the terms of the original contract;13 a bond which is given by the contractor and which provides that neither the contractor nor his surety shall be liable for any damage which results from an act of God, can not modify the liability of the contractor under his original contract with the property owner to construct a building;14 and accordingly if such building is destroyed by a storm, the contractor can not recover on the theory that he is not liable for injury caused by a storm.15
6 Dame v. Wood, 76 N. H. 38, 70 AtL 1061.
7 Jones-Gray Construction Co. v. Stephens, 167 Ky. 765, 181 S. W. 659; Angus v. Scully, 176 Mass. 357, 79 Am. St. Rep. 318, 49 L. R. A. 562, 57 N. E. 674.
8 Schwartz v. Saunders, 46 Ill. 18.
9 See Sec. 2710 et seq.
10 Alabama. Commercial Fire Ins. Co. v. Ins. Co., 81 Ala. 320, 60 Am. Rep. 102, 8 So. 222; Cutcliff v. McAn-ally, 88 Ala. 507, 7 So. 331.
California. Humbolt Lumber Mill Co. v. Crisp, 146 Cal. 086, 106 Am. St Rep. 75, 81 Pac. 30 (no lien can attach to the soil after destruction of the building).
Connecticut School District v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371.
Kentucky. Doll v. Young, 149 Ky. 347, 149 S. W. 854.
Maryland. Milske v. Steiner Mantel Co. 103 Md. 235, 115 Am. St Rep. 354, 6 L. R. A. (N.S.) 1105, 63 Atl. 471.
Massachusetts. Adams v. Nichols, 36 Mass. (19 Pick) 275, 31 Am. Dec. 137.
New Jersey. Trenton Public Schools v. Bennett, 27 N. J. L, 513, 72 Am. Dec. 373.
New York. Tompkins v. Dudley, 25 N. Y. 272, 82 Am. Dec. 349.
11 Milske v. Steiner Mantel Co., 403 Md. 235, 115 Am. St Rep. 354, 5 L. R. A. (N.S.) 1105, 63 Atl. 471.
The owner is not bound to restore the building as it was before the Ore. Newman Lumber Co. v. Purdum, 41 O. S. 373.
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.16 Under a contract to build an annex to an existing building the burning of the building and the annex operates as a discharge.17