
    Julius Goldman, Resp’t, v, Herman Rosenberg and Theodore Rosenberg, App’lts.
    
      (Court of Appeals, Second Division,
    
    
      Filed October 8, 1889.)
    
    Partnership — Agreement by partner to take firm real estate on dissolution — Effect of fire upon.
    The parties formed a copartnership, the defendants putting in their factory buildings and land as capital at an agreed valuation, at which they •agreed to take it back at the end of the term. The buildings were destroyed by fire and the firm received the insurance money. Held, that the agreement was virtually one to purchase the property at a certain time; that this had reference to the property in its then existing condition, including the buildings thereon, and that as the buildings were destroyed, performance of the contract in that regard could not be enforced.
    Appeal from a judgment of the general term of the court of common pleas for the city and county of New York, affirming a judgment entered upon the report of a referee.
    
      Julius J. Frank, for app’lts; E. H. Benn and J. Alexander Koons, for resp’t.
   Haight, J.

This action was brought for an accounting between copartners. On the 19th of Hovember, 1877, the parties hereto entered into a written contract to form a copartnership to manufacture and sell varnishes and japans. The copartnership was to continue until the 31st of December, 1880. The plaintiff was to put in $75,000 in cash, and the defendants their factory buildings and the grounds upon' which the same were situated, which was to be contributed as a part of their capital stock upon a valuation agreed upon of $15,000, at which sum they agreed, upon the liquidation of the business, to take the property back.

Thereafter and on the 6th day of February, 1879, the buildings upon the factory property were destroyed by fire. At the time the buildings were insured on behalf of the firm, who collected of the insurance companies as damages the sum of $2,942.65. On the termination of the co-partnership the plaintiff claimed that it was the duty of the defendants to take the real estate back at the sum of $15,000, less the amount of insurance collected as the damages on account of the fire. The defendants claiming that the buildings upon the premises having been destroyed by fire they were released from the provisions of the contract and were not obliged to take the premises back. The value of the premises at the time of the dissolution appears to have been about $6,000.

In determining this question it becomes important to have in mind the relation of the parties under the contract, in order that we may properly distinguish between the different line of authorities relied upon by the opposing parties. When the articles of copartnership were entered into, the defendants executed and delivered a deed of the premises to the individuals composing the firm. The title, therefore, vested in the firm. Under the articles of copartnership the defendants agreed to take the premises back at the stipulated sum of $15,000. The firm having the title would have to reconvey the property to the defendants. The agreement was, therefore, in effect an agreement to purchase the property at the termination of the copartnership and to pay therefor the stipulated price.

Benjamin on Sales, at § 570, states the rule as follows: “It is no excuse for the non-performance of a condition, that it is impossible for the obligor to fulfil it if the performance be in its nature possible. But if a thing is physically impossible quad natura fieri non concedit, or be rendered impossible by the act of God the obligation is at an end.”

Story, in his work on Contracts, at page 1076, says: “But in contracta from the nature of which it is apparent that the parties contracted on the basis of the continued existence of a given person or thing, a condition is implied that if the performance become impossible from the perishing of the person or thing, that shall excuse such performance.”

In the case of Wells v. Calnan, 107 Mass., 514, the plaintiff had agreed to sell the defendant a farm at a price agreed upon to be paid for at a future day specified, and on the payment of the purchase price the plaintiff was to execute and deliver the defendant a deed of the premises. Subsequently the buildings upon the farm were destroyed by fire. Thereafter, and at the time agreed upon, the plaintiff tendered a deed and demanded the contract price, which was refused, and subsequently action was brought to recover the amount It was held that he could not recover. Gray, J., in delivering the opinion of the court, says: “ When property, real or personal, is destroyed by fire, the loss falls upon the party who is the owner at the time, and if the owner of the house and land agrees to sell and convey it upon the payment of a certain price which the purchaser agrees to pay, and before full payment the house is destroyed by accidental fire so that the vendor cannot perform the agreement on his part, he cannot recover or retain any part of the purchase money.”

In the case of Dexter v. Norton, 47 N. Y., 62, the action was brought to recover damages for a breach of contract to sell and deliver a quantity of cotton. The defendant had agreed to sell to the plaintiff 607 bales of cotton át a price agreed upon. A portion had been delivered, but 161 bales were accidentally destroyed by fire without fault or negligence on the part of the defendants. Subsequently cotton rose in value, and the plaintiff claimed the right to recover the increase in value on the bales destroyed. It was held that the cotton did not vest in the vendee at the time it was destroyed by fire; that thereafter delivery was impossible, and that the plaintiff was not entitled to recover.

In the case of Kein v. Tupper, 52 N. Y., 550, the plaintiff had contracted to sell the defendant 119 bales of cotton. The cotton was to be weighed and samples taken and compared with the original before delivery, and the plaintiff delivered to the defendants an order upon the warehouse where the cotton was stored, for the same, and the defendants indorsed upon the order a direction to re-store for them and delivered it to the warehouseman. Upon the next day seventy bales of the cotton were weighed and samples taken. That night forty-two of the bales, together with those not weighed, were destroyed by fire. It was held that there was no delivery and acceptance so as to pass the title; that the' compliance which was to precede delivery was not complete until the samples taken out had been compared with the original samples; that a destruction of the cotton without fault of the plaintiff ■relieved him from an action for damages for non-performance.

In the case of Smyth v. Sturges, 108 N. Y., 495; 13 N. Y. State Rep., 801, the plaintiff’s assignor entered into a contract with the defendant in which he agreed to sell certain lots upon which there were stores. At the time of the agreement there were various fixtures consisting of partitions, gas pipes, plumbing, etc., in the stores which had been put in by tenants, who afterwards and before the deed was tendered removed them from the stores. In an action to recover damages it was held that the defendant was entitled to the stores in the condition that they were in when the agreement was made, and that a refusal to take them after the fixtures had been removed was not a breach of the contract. ,

In the case of Clark's Appeal, 72 Pa. St., 142, the parties had 'entered into a partnership agreement, by which one had contributed real estate at an' estimated value which was carried into the firm’s stock account to his credit, he still retaining the legal title, and reserving the right to withdraw the property upon the dissolution of the firm. Subsequently, the buildings were destroyed by fire, but were re-built with new and more expensive buildings by the firm. It was held that he could not thereafter withdraw the property; that the fire had rendered it impossible to perform the conditions of the contract; that the loss fell upon the partnership, and it having reconstructed the buildings, that they were new and different from those existing at the time the contract was made, and that he did not have the right to withdraw them. See also Rugg v. Minett, 11 East, 210; Clinton v. The Hope Ins. Co., 45 N. Y., 454-466; Thompson v. Gould, 20 Pick., 134; Herring v. Hoppock, 15 N. Y., 409.

It will be observed that, under the authorities to which we have referred, the question as to who shall sustain the loss depends largely upon the determination of thd question of ownership, and this rule is expressly recognized by Pomeroy in his work on Specific Performance, at § 322, cited by the respondent, in which he states that “ The effect of events occurring after the point of time which fixes the interest of the parties, is wholly different from that of prior events. At that period, although the contract is executory in form and is treated as wholly executory at law, the equitable beneficial estate in the subject matter passes to the purchaser, and he becomes in contemplation of equity the real owner. He therefore takes the benefit of all subsequent improvements, increases, gains, rises in value and other advantages happening to the property. On the other hand, the subject matter is at his risk, and he must bear all losses, total or partial, from fire or other accidental causes, or from trespassers and all depreciations in value and other disadvantages res perit Domino. But the latter proposition is subject to the most important modification, namely: That the loss or depreciation does not happen from the neglect, default or unwarrantable delay of the vendor in carrying out the contract.”

Applying the principle stated in these authorities to the question under consideration, we find that the copartnership was the owner of the premises, having the legal title thereto at the time "the fire occurred, and had the premises insured. That the defendants were not the owners, legal or equitable. They did not have an insurable interest in the premises. It is true that they had agreed to purchase the premises at a time fixed upon in the future at a stipulated price, but that agreement had reference to the existence of the property in substantially the same condition, reasonable use and wear excepted, that it was in at the time the ■agreement was made, and at that time the factory buildings were in existence. Since then they have been destroyed by fire, and the value of the property has largely depreciated in consequence thereof. The defendants did not agree to purchase the premises without the buildings, and it is no longer possible for the plaintiff or the members of the copartnership to convey and give title to that portion of the premises destroyed by fire. ■

We are, therefore, of the opinion that performance of the contract in that regard can no longer be enforced.

The respondent states that the burning of the buildings did not harm the defendants, as the insurance companies offered to rebuild the buildings. No such fact, however, appears to have been found by the referee. It does appear that he was requested to so find by the plaintiff, but that the request was refused. We have examined the authorities referred to by the respondent, and those relied upon by the referee, but it does not appear to us that they -are in point, or bear upon the question under consideration.

A tenant does not occupy the position of a purchaser under a contract of sale, or come within the same rule. Neither does a contractor who has undertaken to furnish the material and construct a house on the land of another, where the same has been destroyed by fire before the house was finished and delivered, as was the case of Tompkins v. Dudley, 25 N. Y., 272. There can be no doubt about that rule. If you go to a wagon maker and order a carriage made, he cannot recover the contract price until he delivers the carriage. The fact that it was burned or destroyed when partially built is his loss; not yours. It does not, however, appear to us that this or kindred cases cited are in point or bear upon the question under consideration.

The case of Paine v. Meller, 6 Vesey, 349, 352, was disposed of upon the ground that the party had become in equity the owner of the premises at the time of the fire, and is consequently in harmony with the cases to which we have already referred.

Some question has been made in reference to the form of the exceptions taken by the appellants. The criticism is well founded as to most of them, but an exception to the third conclusion of law, in that the item, factory account, $12,961.88 should have been.' stated therein at $6,000, we think is good and sufficient in form. It is the item in controversy, and which is involved in the question which we have discussed

We are, therefore, of the opinion that the judgment should be reversed, and a new trial ordered, with costs to abide the event

All concur.  