It has been held in a number of cases that one who is prevented from completing the performance of a contract to alter, decorate, repair, or contribute to the construction of a building, by the destruction of the building, cannot recover for the labor and materials expended in part performance.2 Doubtless one of the reasons for so holding - not always made clear in the cases - is the notion that the destruction of the building before complete performance prevents the defendant from reaping any benefit from part performance. The weight of American authority, however, permits a recovery,1 though in some of the cases upon the theory of a genuine implied agreement by the owner of the building to pay pro rata for the actual performance of the work in case the building is destroyed. The quasi contractual basis of recovery is well expressed in the following decisions:

1 See Keener, "Quasi-Contracts," p. 250, in which it is forcefully argued that the introduction of evidence to show that a condition inserted in a contract was inserted to meet a contingency which has not arisen is not a violation of the so-called parol evidence rule. "Whether this evidence should be allowed or not," says Professor Keener, "would seem to depend upon the purpose for which it is offered. If it is offered for the purpose of varying the terms of a contract, and to enable the person to recover on the contract itself, the evidence should not be admitted, for the reason that it would convert what is in form a conditional promise into an absolute promise. But when the plaintiff concedes that the promise is a conditional promise, and that therefore he cannot recover upon that promise, and offers the evidence, not for the purpose of claiming rights under the contract, but for the purpose of showing that a recovery by him would not violate any intention that existed in the mind of either himself or the defendant at the time when the contract was made, such evidence it is submitted is not open to the objection of varying a written instrument by parol evidence."

2 Appleby v. Myers, 1867, L. R. 2 C. P. 651; Siegel, Cooper & Co. v. Eaton & Prince Co., 1897, 165 111. 550; 46 N. E. 449; Huyett Mfg. Co. v. Chicago Edison Co., 1897, 167 111. 233; 47 N. E. 384; 59 Am. St.

Young v. City of Chicopee, 1904,186 Mass. 518; 72 N. E. 63: Action to recover for work and materials furnished under a contract for the repair of a bridge. During the progress of the work, the bridge was totally destroyed. The only question was whether the defendant was liable for the loss of lumber which the plaintiff had distributed along the bridge and the river banks but which at the time of the fire had not actually been used in making repairs. Hammond, J. (p. 520): "In whatever way the principle may be stated, it would seem that the liability of the owner is a case like this should be measured by the amount of the contract work done which, at the time of the destruction of the structure, had become so far identified with it as that but for the destruction it would have inured to him as contemplated by the contract. In the present case the defendant, in accordance with this doctrine, should be held liable for the labor and materials actually wrought into the bridge."

Rep. 272; Krause v. Board of Trustees, 1904, 162 Ind. 278; 70 N. E. 264; 65 L. R. A. Ill; 102 Am. St. Rep. 203; Taulbee v. McCarty, 1911,144 Ky. 199 ; 137 S. W. 1045 ; King v. Low, 1902, 3 Ont. L. R. 234. And see Brumby v. Smith, 1841, 3 Ala. 123; Clark v. Collier, 1893, 100 Cal. 256; 34 Pac. 677; Louisville Foundry, etc., Co. v. Patterson, 1906, 29 Ky. Law Rep. 349; 93 S. W. 22; Fairbanks v. Richardson Drug Co., 1890,42 Mo. App. 262; Pike Electric Co. v. Richardson Drug Co., 1890, 42 Mo. App. 272.

1 Cleary v. Sohier, 1876, 120 Mass. 210; Butterfield v. Byron, 1891, 153 Mass. 517 ; 27 N. E. 667; 12 L. R. A. 571; 25 Am. St. Rep. 654 ; Young v. City of Chicopee, 1904, 186 Mass. 518; 72 N. E. 63; Angus v. Scully, 1900, 176 Mass. 357 ; 57 N. E. 674; 49 L. R. A. 562 ; 79 Am. St. Rep. 318; Ganong & Chenoweth v. Brown, 1906, 88 Miss. 53; 40 So. 556; 117 Am. St. Rep. 731; Haynes, Spencer and Co. v. Second Baptist Church, 1882, 12 Mo. App. 536, (aff. 1885, 88 Mo. 285; 57 Am. Rep. 413; but see Fairbanks v. Richardson Drug Co., 1890, 42 Mo. App. 262; Pike Electric Co. v. Richardson Drug Co., 1890, 42 Mo. App. 272); Dame v. Woods, 1908, 75 N. H. 38; 70 Atl. 1081, (cf. same v. same, 1905, 73 N. H. 222; 60 Atl. 744; 70 L. R. A. 133); Niblo v. Binsse, 1864, 3 Abb. App. Dec. (N. Y.) 375; Hayes v. Gross, 1896, 9 App. Div. 12; 40 N. Y. Supp. 1098, (aff. 1900, 162 N. Y. 610; 57 N. E. 1112); Hollis v. Chapman, 1871-72, 36 Tex. 1; Weis v. Delvin, 1887, 67 Tex. 507; 3 S. W. 726; 60 Am. Rep. 38; Clark v. Franklin, 1836, 7 Leigh (Va.) 1; Hysell p. Sterling Coal Co., 1899, 46 W. Va. 158; 33 S. E. 95; Cook v. McCabe, 1881, 53 Wis. 250; 10 N. W. 507; 40 Am. Rep. 765; Halsey v. Waukesha Springs Sanitarium, 1905, 125 Wis. 311; 104 N. W. 94; 110 Am. St. Rep. 838. And see Schwartz v. Saunders, 1867, 46 111. 18; Rawson v. Clark, 1873, 70 111. 656; Clark v. Busse, 1876, 82 111. 515; Teakle v. Moore, 1902,131 Mich. 427; 91 N. W. 636; Ellis v. Midland R. Co., 1881, 7 Ont. App. 464.

Hayes v. Gross, 1896, 9 App. Div. 12; 40 N. Y. Supp. 1098; affirmed without opinion, 1900, 162 N. Y. 610; 57 N. E. 1112: Action to recover for labor performed and materials furnished by plaintiff under a contract for carpenter work on a hotel building, which in the course of plaintiff's performance was destroyed by fire. Landon, J. (p. 13): "When a builder agrees to erect and complete an entire house, if the house is destroyed by fire before completion, the builder can erect another; and, if he does not do so, he is guilty of a breach of his contract. But if a painter agrees to paint a certain house, and the house is destroyed before the painting is finished, it is impossible for him to complete his contract. If a new house should be erected, it would not be the house he had agreed to paint. Why should not the painter be paid for his part performance ? It was no fault of his that full performance was impossible. But why should the owner pay? Because every stroke of the painter's brush converted something of the painter's labor and material into the property of the owner and thus the fire destroyed the owner's property, and not the painter's. If the painter had been painting a boat which he had agreed to make and deliver to the vendee, and fire had destroyed it before delivery, the whole loss would have been his, and not the vendee's, since title would not pass until delivery."

In the Massachusetts case of Lord v. Wheeler1 the court, in allowing a recovery, said:

1 1854, 1 Gray (Mass.) 282, 283. 181

"The precise ground on which the plaintiff can recover in this case is, that, when the repairs upon the house were substantially done, and before the fire, the defendant by his tenant entered into and occupied it, and so used and enjoyed the labor and materials of the plaintiff; and that such use and enjoyment were a severance of the contract, and an occupation pro tanto by the defendant."l

This does not make it entirely clear whether the defendant is held liable in contract because of the severance, by occupation, of that part of the contract which was performed from that which was not, or in quasi contract because of the enjoyment, by use and occupation, of the improved property. As to contractual liability it would seem difficult to regard the mere occupation of one's own house while it is undergoing repairs as a severance of the contract to make the repairs. " It would seem that a defendant, so long as he does no act to interfere with the performance by a plaintiff of his contract, and is not under a contract to surrender exclusive possession of his property while repairs are being made, should be allowed, if he is willing to undergo the inconvenience consequent upon living in a house which is being repaired, to live therein without being held to waive the conditions of the contract." 2 On the other hand, if the court, by declaring the defendant liable upon the "precise ground" that by entering into the occupation of the building he reaped a benefit from the plaintiff's performance, intended to indicate that without proof of such occupation there could have been no recovery, its view was contrary to the settled doctrine of Massachusetts.3