
    Taulbee v. McCarty.
    (Decided June 13, 1911.)
    Appeal from Breathitt Circuit Court.
    'Contract — Building House For Lump Sum — Burning 'Before Completion — Recovery—A contractor wfio agrees for a lump sum to raise a house can recover nothing for the work done when the ho ’se burns before he finishes the contract without fault of either ¡party and without his having been delayed by any fault of the owner.
    A. H. FATTO'NI. and G. W. FLEENOR for ■ appellant.
    O. H. POLLARD and M. H. HOLLIDAY for appellee.
   Opinion of. the Court by

Chief Justice Hobson

Reversing.

S. S. Taulbee owned a house in Jackson, Kentucky, and made a contract with P. M. McCarty by whieh McCarty agreed to raise the house and put a new foundation under it for $400. McCarty dug some trenches around the house preparatory to raising it, and got out the stone for the foundation which was tto be put under the house after it was raised. After he had done this, and before he had begun raising the house, it accidentally caught fire and burned down. He then brought this suit against Taulbee to recover for the work he had done. The house was destroyed without the fault of either party, but McCarty claimed that Taulbee was to furnish certain jacks to be used in raising the house; (that Taulbee delayed him in his work by his negligence in furnishing the jacks, and that but for this he would have completed the contract before the time the house caught fire. The evidence is conflicting as to whether Taulbee in the beginning agreed to furnish the jacks, but conceding that McCarty’s statement on the subject is to be accepted we find that McCarty told Taulbee that he could rent the jacks that would be necessary at Lexington or Winchester; that Taulbee wrote there to get them, but found that they were not to be had, and that he then ordered the jacks from a merchant as soon as he was requested from McCarty to do so. Under the evidence we do not find that there was any delay on Taulbee’s part that could reasonably have been avoided after he was notified by McCarty that he would have to buy the jacks. The arrangement being- in the beginning that the jacks would have to be rented, Taulbee was entitled to a reasonable time to get them after that arrangement failed. The undisputed evidence is that he ordered them at once, and this was all that he could do under the circumstances. On these facts the circuit court gave judgment in favor of McCarty against Taulbee for $258, the value of the work which he had done 'in digging the ditches and getting out the rock for the job. Taulbee appeals.

We have read the record with much care and find that there is nothing in it to charge Taulbee with negligence in getting- the jacks. While there was some delay in getting the jacks, this was from causes which Taulbee could not control. The burning of the house was an accident which neither of them anticipated, and • there is no reason under the evidence for charging Taulbee, who had lost his house, with the loss that McCarty sustained on the ground that it was his fault that -tv-jacks were not on hand. It remains to determine wheth- ■ er on a contract to raise a house the owner of the house is liable for what the contractor had done under the contract, when 'the house burns down before the work is in fact done on the house. There are a number of Ámeri-. can cases holding that where a contractor agrees to per-. form work on property belonging to another and without the fault of either, the. property is destroyed by fire. or otherwise, before the work is completed, the contractor may recover on a quantum meruit for the ser-'vice’s performed. (Cleary v. Sohier, 120 Mass., 210; Whelan v. Ansonia Clock Co., 97 N. Y., 293; Hollis v. Chapman, 36 Texas, 1; Cook v. McCabe, 53 Wis., 250.): On the other hand the contrary was held In England in Appleby v. Meyers, 16 L. T. N. S., 669. This view has ■ been followed by the following American eases; Bromby v. Smith, 3 Ala., 123; Newman Lumber Co. v. Purdun, 41 Ohio St., 373; Fildew v Besley, 42 Mich., 100; Krause v. Carrothersville School Trustees (Ind.), 65 L. R. A., 111; Dame v. Wood, (N. H.), 70 L. R. A., 113; Siegel v. Eaton, 165 Ill., 550. The view taken by these cases is preferred by Judge Story (Story on Bailments, section 426b) by Mr. Bishop (Bishop on Contracts, section 588), and by the editor of the second edition of the-' Am. & Eng. Encyc. of Law, Vol. 15, page 1090. It seems to us the sound rule on principle. Where a contract is an entirety, he who has not performed his contract cannot maintain an action upon it. Implied contracts are as a rule only maintained to prevent the enrichment of one person at the expense of another. As a rule there is no implied contract where no benefit has been received. The plaintiff here can not recover upon his contract because he has not performed it; he can not recover against Taulbee upon an implied contract for Taulbee has received no benefit from his work. The rock which McCarty got out is his and he can do as hi1 pleases with it. The ditches which he dug were dug simply to facilitate his work in putting in the new foundation and are of no benefit to Taulbee now that the house is • burned. If McCarty had undertaken to add a room to the house for $400, and before he had finished the addition, the addition only had burned leaving the old house intact, under all the authorities, McCarty could have maintained no action against Taulbee for the work he had done. We can not see that a distinction can be made between a case where the whole house burns and where only that part burns which the workmen is adding to the house. The fact that the remainder of the house also burned does not put the workman in a better position than if his work alone had burned. In this case McCarty had done no work on the house itself, and wo do not see that he can be in a better position than he would be if he had undertaken to add a room to the house and the whole structure had burned before he had completed his contract or was entitled to demand anything of Taulbee under it. Of course a different rule applies where by ithe .contract payments are to be made as the work progresses, and some of the cases above referred to turn on this distinction. It is sometimes said that there can be no recovery in such cases where the contract provides that nothing is to be paid by Ithe owner until the work is completed. But no sound distinction can be maintained between such a contract and one like that before us where the owner is to pay a lump sum for certain work when completed. In such a case no money may be demanded of him until the contract is performed. The legal effect of the contract is that nothing is to be paid until the work is done. What is implied by law need ndt be expressed.

In 2 Parsons on Contracts, side page 658, the rule is thus stated:

“A partial performance may be a defense, pro tanto, or it may sustain an action, pro tanto; but this can be only in cases where the duty to be done consists of parts which are distinct and severable in their own nature, and are not bound together by expressions giving entirety to the contract. It is mot enough ithat the duty to be done is in itself severable, if the contract contemplates it only as a whole.”

Under the facts shown the contract being an entirety, and not performed, no recovery may be had for what was done under it.

Judgment reversed and cause remanded for a judgment dismissing the petition.  