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 can not 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 A delay caused by the failure of the owner's architects to furnish plans and specifications;3 or to approve plans furnished by the contractor;4 or by the owner'a delay 5 or refusal6 to furnish necessary levels; or by the failure of the owner to furnish materials agreed to be furnished;7 or to do the masonry work agreed upon; 8 or to construct a foundation,9 or piers.10 or metal work,11 or roof timbers;12 or to construct the building if this is necessary to enable the contractor to perform,13 agreed to be constructed by the owner and necessary to be constructed before the contractor can proceed with his work, can not 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,14 or to construct a road over which the contractor is to haul material.15 If A and B enter into a contract by which A agrees to prepare a site for a pier and B agrees to construct a pier thereon, A is liable in damages for his delay in preparing such site.16
4 Deyo v. Hammond, 102 Mich. 122, 25 L. R. A. 710, 60 N. W. 456.
5 International Bow & Stern Dock Co. v. United States, 60 Fed. 523.
6 E. I. Du Pont de Nemours Powder 06. v. Schlottman, 218 Fed. 353, 134 C. C. A. 161 [affirming, Schlottman v. E. I. Du Pont de Nemours Powder Co., 210 Fed. 356].
7 Harper v. Sterling, 84 III. App. 62.
8 Harper v. Sterling, 84 III. App. 62.
9 Brown v Monumental Co., 98 Md. 1, 55 Atl. 391.
1 United States. King Iron Bridge & Mfg. Co. v. St. Louis, 43 Fed 763, 10 L. R A. 826; Wyandotte, etc, Ry. v Bridge Co., 100 Fed. 197, 40 C. C. A. 325; Atlantic City v. Warren Bros. Co . 226 Fed 372, 141 C. C A 202; Miller v. United States, 49 Ct CI. 276; American Dredging Co v. United States, 49 Ct CI 350; Morris v. United States, 50 Ct Cl 154 (obiter)
Illinois. Lehmann v Warren, 209 111. 264, 70 N E. 600; Snead v Merchants' Loan & Trust Co, 225 111. 442, 9 L R. A. (NS) 1007, 80 N. E 237.
Louisiana. Hebert v. Weil, 115 La. 424, 30 So. 389; Blymer Ice Machine Co. v McDonald, 48 La. Ann. 439, 19 So. 459.
Maryland. Black v. Woodrow, 39 Md. 194.
Michigan. MalroaHon-Hough ten Co. v. Gregorian Building Co., 191 Mich. 678, 158 N. W. 126.
Minnesota. Davis v. Crookston Waterworks, Tower & Light Co, 57 Minn. 402, 47 Am. St Rep. 622, 59 N. W. 482.
New York. Mosler Safe Co. v. Maiden Lane Safe Deposit Co., 199 N. Y. 479, 37 L. R. A. (N.S.) 363, 93 N. E. 81.
Pennsylvania. Murphy v. Ome, 185 Pa. St. 250, 39 Atl. 959; Hunn v. Pennsylvania Institution for Blind, 221 Pa. St. 403, 18 L. R. A. (N.S.) 1248, 70 Atl. 812.
2 Langford v. United States, 95 Fed. 933; Indianapolis Northern Traction
Co. v. Brennan, 174 Ind 1, 30 L R A. (N.S ) 85, 87 N. E 215, 90 N. E. 65, 91 N E. 503; Atlantic & Danville Ry. v. Delaware Construction Co., 98 Va. 503, 37 S. E 13; Olson v. Viroqua, 121 Wis 571, 105 Am. St. Rep. 1039, 99 N W 326
3 Snead v. Merchants' Loan & Trust Co, 225 111 442, 9 L. R A. (NS) 1007, 80 N. E. 237; Mahoney v. Church, 47 La. Ann 1064, 17 So. 484; Hunn v Pennsylvania Institution for Blind, 221 Pa. St 403, 18 L. R. A. (NS) 1248, 70 Atl. 812.
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.
See also, Gardner v. Deeds, 116 Tenn. 128, 4 L. R. A. (NS.) 740, 92 S W. 518.
4 Mosler Safe Co. v. Maiden Lane Safe Deposit Co., 199 N. Y 479, 37 L. R. A. (N.S.) 363, 93 N. E. 81.
5 Boden v. Maher, 105 Wis. 539, 81 N. W. 661.
6 Olson v. Snake River Valley Ry., 22 Wash. 139, 60 Pac 156.
7 Williams v. Yates (Ky), 113 S. W. 503; Davis v. Crookston Waterworks, Power & Light Co., 57 Minn. 402, 47 Am. St. Rep. 622, 59 N. W. 482; Olson v. Viroqua, 121 Wis. 571, 105 Am. St. Rep. 1039, 99 N. W. 326.
See also, in a contract to make an image. Amhrosini v. Pelaggie, - Vt. - , 108 Atl. 916.
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.17 The contractor is not liable for damage caused by the owner's furnishing defective plans, thereby making certain repairs and changes necessary.18 Delay in inspection provided for by the con-tract and necessary before the contractor can proceed discharges him from liability for delay.19 If a building is to be paid for when the owner is satisfied that no liens have been placed on the property, the owner can not withhold payment because of a lien on the property for material bought under such contract from a third person by the owner.20 The contractor may recover damages which are due to the fact that the material which the owner has furnished in accordance with the contract is defective.21 If the contractor has a certain time in which to remove defects, the act of the owner in removing or destroying the work of the contractor before he has an opportunity to remove such defects discharges the contractor from his liability upon such covenant,22 and he may recover as though he had performed such covenant in full.23
8 Underwood v Wolf, 131 111. 425, 10 Am St Rep 40, 23 N. E. 698.
9 Standard Gaslight Co v. Wood, 61 Fed 74.
10 King Iron Bridge ft Mfg. Co. v. St Louis, 43 Fed 768, 10 L R A. 826
11 Langford v. United States, 95 Fed. 033
12 Vaughn v. Digman (Ky), 43 S. W 251
13 Board of Education v. Roxbury Township, - N. J. - , 107 Atl. 250. (Contract for installing a system of heating and ventilation in a school building.)
14 Chicago, Milwaukee ft St. Paul Ry. v Clark, 92 Fed. 968, 35 C. C. A. 120.
15 Corbett v. Anderson, 85 Wis. 218, 54 N. W. 727.
16 Miller v. United States, 49 Ct. CL 276.
17 Cavode v Principal, 110 Mich. 672, 68 N. W. 987.
18 Coon v. Citizens' Water Co., 152 Pa. St. 644, 25 Atl. 505.
19 Erickson v. United States, 107 Fed. 204,
20 Vanderhoof v. Shell, 42 Or. 578, 72 Pac. 126.
The act of the principal contractor in making performance impossible on the part of a subcontractor has the same consequences as prevention of performance by the owner.24 The contractor can not recover damages from the subcontractor if the latter treats the contract as discharged by such act of the principal contractor.25 If the plans are defective and neither the contractor nor the subcontractor has assumed the risk thereof, it is said that the subcontractor may recover for the value of his performance, but that he can not recover profits which he would have made if the plans had permitted performance.26 If the contract contains an express provision to the effect that the principal contractor will compensate the subcontractor for delay in furnishing labor and material, the principal contractor is liable for such delay although such delay is due to the fault of the property owner and not to the fault of the principal contractor.27