In the New York case of Niblo v. Binsse,1 which has had some following elsewhere, a recovery for services rendered and materials used in setting up a steam engine and heating apparatus was allowed upon the peculiar ground that the owner of the building, for whom the work was being done, impliedly undertook to keep the building in existence until the work was completed. Said the court:

"No principle of law is better settled than this, that when one party has, by his own act or default, prevented the other party from fully performing his contract, the party thus preventing performance cannot take advantage of his own act or default, and screen himself from payment for what has been done under the contract. The law will imply a promise on his part to remunerate the other party for what has been done and support an action upon such implied promise.

11864, 3 Abb. App. Dec. (N. Y.) 375, 378. 184

"This case falls exactly within this principle of law. . . . If one party agrees with another to do work upon a house, or other building, the law implies that the employer is to have the building in existence upon which the work contracted for may be done. It is necessarily a part of the contract on the part of such employer, whether it is specified in it in terms or not. Here the defendant's testator failed to provide and keep the building till the work could be completed, and thus, - and thus only, - was performance prevented."1

If it be conceded that the owner of a building impliedly undertakes to keep it in existence during the performance of a contract for work upon it, the plaintiff in such cases as Niblo v. Binsse clearly has a right of action for breach of contract. His recovery on the common counts properly rests, therefore, not upon the right to recover in quasi contract where a contract is unenforceable because of impossibility of performance, but upon the right to elect between the alternative remedies of compensation and restitution in the case of breach by the defendant (post, Sec. 260 et seq.).

1 Accord: Rawsonv. Clark, 1873, 70 111. 656, 658, (Action to recover value of labor and materials furnished under a contract to manufacture and place in a building certain ironwork. After all the ironwork had been manufactured but before any of it had been set up, the building was wholly destroyed by fire. Sheldon, J.: "The reason of their not entirely completing their contract by placing the ironwork in the building, was, the default of the defendant in not having a building provided for the purpose."); Haynes, Spencer & Co. v. Second Baptist Church, 1882,12 Mo. App. 536, 545 ; aff. 1885,88 Mo. 285; 57 Am. Rep. 413, (Action to recover value of certain pews and other woodwork and labor and materials furnished under a contract by which the plaintiff agreed to " make, finish and put up complete, furnishing all labor and materials, the pews in the audience room and in the gallery, the pulpit and the screen over the pulpit and baptistry, and the organ front " for $4800 to be paid on completion and acceptance of the work. During the plaintiff's performance the building caught fire from some unexplained accident and was destroyed. Bakewell J.: "Where the owner of the property retains possession and contracts for work to be done upon it while in his custody, there is, we think, an implied obligation resting upon him to have it in readiness for the work to be performed upon it, and the plaintiff was not bound to provide in the contract for the default of the other party in the matter of this obligation. So far as regards an impossibility arising from the act of God, neither party need provide against that in his contract; but from an impossibility arising from human agency, and an accidental fire making it impossible to finish the building in time to receive the woodwork, it would seem that the owner and occupier of the building, rather than one having access to it as one of many contractors employed in its repair or construction, should provide.") See also Rhodes v. Hinds, 1903, 79 App. Div. 379; 79 N. Y. Supp. 437, 439.

In the more recent New York case of Hays v. Gross,1 the Appellate Division of the Supreme Court ventured to reject the reasoning of Niblo v. Binsse. Said Landon, J.:

"We think Niblo v. Binsse, upon which the learned referee relied, was correctly decided, but, with due respect, we submit that the decision was placed upon untenable ground. The court said that it placed its decision upon the ground that the contractor was prevented from performing his contract by the default of the owner in failing to keep on hand and in readiness the building in which the work was to be done, and was in default whether the building was destroyed with or without fault on his part. The case shows that the building was destroyed without fault of either owner or contractor. If the defendant was without fault in the destruction of the building, it is difficult to see how he was in default for not keeping it on hand. In the Niblo Case, as in the one under review, we think the destruction of the building prevented and excused the defendant from keeping it on hand, and that neither party could recover damages of the other upon account of the breach of the contract thereby caused. Authorities in other states, while denying the right of either party to the contract to recover of the other damages of [for] a breach of the contract when performance is defeated by the destruction of the building . . . affirm the right of the contractor to recover for what he has done and furnished up to the time of its destruction."