Keeling v. Schastey & Vollmer
Before: Kerrigan
Synopsis
Building Contract—Prevention of Performance—Loss of Building by Fire—Protecton by Contract Essential.—-Where one contracts to furnish labor and materials in the building of a house or other structure for a specified sum, to be paid in installments, the builder cannot recover for a partial construction, in case the building is destroyed by fire, without the fault of either party, unless the builder is protected against such contingency by the terms of the contract.
Id.—Other Conditions of Recovery by Builder for Prevention of Performance Enumerated—Act of God—Pire not Included.— The builder eau only recover for partial compensation when the full performance of his contract is prevented by the act of the other party, or by operation of law, or by the act of God, or of the public enemy. Pire is not to be classified as an act of God.
Id.—Contract for Work and Materials on Existing Building—Implied Condition of Continued Existence—Loss by Pire—Assumpsit for Reasonable Value.—-Where one agrees to furnish work and materials upon an existing building, such as to do painting and plastering work thereon, such agreement is upon the implied condition that the building shall continue to exist, and its destruction by fire, without the fault of either party, will excuse the full performance of such agreement, and will entitle the agreeing party to recover the reasonable value of the work and materials in part performed, prior to the fire, upon an implied assumpsit.
Id.—Assumpsit not upon Contract—Terms of Contract not Controlling.—An action will only lie upon such contract when it has been fully performed; but an action of assumpsit for work and materials furnished prior to the accidental loss of the building by fire, to recover its reasonable value, is not upon the contract, and the terms of the contract in this regard are not controlling.
KERRIGAN, J.
This is an appeal by the defendant from a final judgment in favor of the plaintiff, taken within sixty days after entry, and from an order denying defendant’s motion for a new trial, in an action in
quantum meruit
for labor performed and materials furnished.
Briefly, the facts are that in the month of June, 1907, the defendant entered into a contract with the Cliff House Company, a corporation, to alter and repair an existing building known as the Cliff House. Subsequently the defendant made a contract with A. C. Wocker, plaintiff’s assignor, whereby certain painting and plastering work in and upon said building was to be done by the latter fdr a sum not exceeding
[766]
$4,700, and he was to accept payments on the basis of seventy-five per cent of the work done from time to time as the work progressed, the remaining twenty-five per cent being payable thirty-five days after its completion.
Prior to the time Wocker was able to complete his contract, and after he had furnished labor and materials of the reasonable value of $3,545.96, the building was destroyed by fire without the fault of either party to the contract. At this time Wocker had received on account a payment of $1,800. This suit is to recover $1,745, alleged to be the difference between the amount paid and the reasonable value of the work as it had progressed up to the time of the destruction of the building.
It is well settled that where one undertakes to furnish labor and materials in the building of a house or other structure for another for a specified sum, the builder cannot recover for a partial construction in case the building be destroyed without the fault of either party, unless the builder is protected against such contingency by the terms of the contract. In order to entitle the builder to recover, full performance of the contract is necessary, unless he has been prevented by the act of the other party, or by operation of law, or by the act of God, or by the public enemy
(Carlson
v.
Sheehan,
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