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 building contract is broken on the part of the contractor by his failure to construct the building or other structure in accordance with the terms of the contract.1 What constitutes performance,2 and who assumes the risk as to the sufficiency of the plans,3 and the right of the contractor to recover for performance which is less than substantial performance,4 are discussed elsewhere. A contract by a landlord to furnish a waterproof basement is not broken by the fact that the basement is flooded through the windows by reason of an unprecedented flood in a creek near by.5
25 Ranft V: Reimers, 200 III. 386, 60 L. R. A. 291, 66 N. E. 720.
26 Symonds v. Jones, 82 Me. 302, 17 Am. St. Rep. 485, 8 L. R. A. 570, 19 Atl. 820; Grow v. Seligman, 47 Mich. 607, 41 Am. Rep. 737, 11 N. W. 404.
27 Linn County Abstract Co. v. Beech-ley, 124 la. 146, 99 N. W. 702.
28 Linn County Abstract Co. v. Beech-ley, 124 la. 146, 99 N. W. 702.
29 Reeves v. Sprague, 114 N. Car. 647, 19 S. E. 707; Finch Bros. v. Michael, 167 N Car. 322, L. R. A. 1915B, 1204, 83 S. E. 458.
30 Finch Bros. v. Michael, 167 N. Car. 322, L. R. A. 1915B, 1204, 83 S. E. 458.
31 Jayne & Keve Bros. Lumber Co. v. Turner, 132 la. 7, 109 N. W. 307.
1 Keys v. Garben, 149 la. 394, 128 N. W. 337; Cornish, Curtis & Greene Co. v. Antrim Co-operative Dairy Association, 82 Minn. 215, 84 N. W. 724; Houlahan v. Clark, 110 Wis. 43, 85 N. W. 676.
2 See Sec. 2784 and Sec. 2793 et seq. 3 See Sec. 2775.
4 See ch. LXXXVIII.
5 Ozark Grocer Co. v. Crandall, 131 Ark. 481, L. R. A. 1018R 824, 199 S. W. 551.
A building contract is broken on the part of the owner by his failure to deliver possession in the time fixed by the contract; 6 or by his failure to do work preliminary to that which is to be done by the contractor, in accordance with the terms of the contract;7 or by his failure to furnish material, in accordance with the terms of the contract, which the contractor is to use; 8 or by the failure of the owner to furnish plans in accordance with the terms of the contract, or to furnish them in time.9 A building contract is also broken by the failure of the owner to make payments in accordance with the terms of the contract;,10 but unless there is a provision for payment by the owner while the contractor is still performing, payment is not due until the contract has been performed by the contractor.11 Failure to repay money which has been paid by mistake is not breach of a bond for the faithful performance of a construction contract.12