The case of the destruction of goods or chattels in the course of alteration or repair, without the fault of the bailee, is on all fours with that of the destruction of a building during the making of improvements thereon. The labor and materials being expended in response to the desire of the owner of the property and being incorporated in or absorbed by the property, constitute a benefit to such owner, whether or not they enhance the value of the goods. And neither the fact that the full benefit contemplated by the contract is not conferred, nor the fact that the owner is deprived of the "enjoyment," by use or sale, of the benefit, should be permitted to defeat a recovery. This view appears to have been taken by Lord Mansfield :
1 1896, 9 App. Div. 12, 16; 40 N. Y. Supp. 1098, aff. 1900, 162 N. Y. 610; 57 N. E. 1112.
Menetone v. Athawes, 1764, 3 Burr. 1592: Action by a shipwright for work and materials in repairing defendant's ship. The ship was in a dock hired by the defendant from the plaintiff, and was destroyed by fire when only three hours' work was wanting to complete the repairs.
Mr. Dunning, for the defendant: "The question is, 'Whether the plaintiff is entitled to be paid by the defendant for that work and labor from which the defendant neither did nor could reap any advantage' ..."
Mr. Murphy, in reply: "Suppose a horse sent to a farrier's to be cured, is burnt in the stable before the cure is completely effected: shall not the farrier be paid for what he has already done?"
Lord Mansfield (p. 1594): "This is a desperate case for the defendant (though compassionate): I doubt it is very difficult for him to maintain his point. Besides it is stated, 'that he paid 5 l. for the use of the dock.'"
Mr. Justice Wilmot : "So that it is like a horse that a farrier was curing being burnt in the owner's own stable."
As heretofore stated, however (ante, Sec. 112), it subsequently became the settled doctrine in England that a party in default, even though complete performance is impossible, cannot recover the benefit resulting from part performance. And Menetone v. Athawes was distinguished as a case in which the agreement was not to pay for the entire repairs when completed, but for such work as the shipwright might do and in which, therefore, the plaintiff's recovery was upon the contract itself:
Appleby v. Myers, 1867, L. R. 2 C. P. 651: Action for work and materials in erecting engine, boiler, and certain machinery in the defendant's property. In the course of the plaintiff's performance of his contract, the defendant's premises were destroyed by fire. Blackburn, J. (p. 659): "It is quite true that materials worked by one into the property of another become part of that property. This is equally true, whether it be fixed or movable property. Bricks built into a wall become part of the house; thread stitched into a coat which is under repair, or planks and nails and pitch worked into a ship under repair, become part of the coat or the ship; and therefore, generally, and in the absence of something to shew a contrary intention, the bricklayer, or tailor, or shipwright, is to be paid for the work and materials he has done and provided, although the whole work is not complete. It is not material whether in such a case the non-completion is because the shipwright did not choose to go on with the work, as was the case in Roberts v. Havelock,1 or because in consequence of a fire he could not go on with it, as in Menetone v. Athawes. But, though this is the prima facie contract between those who enter into contracts for doing work and supplying materials, there is nothing to render it either illegal or absurd in the workman to agree to complete the whole, and be paid when the whole is complete, and not till then: and we think that the plaintiffs in the present case had entered into such a contract."
In America, the value of the labor and materials expended upon the property may be recovered.2