
    The Board of Education of Bath Township, Allen County, v. Townsend.
    
      Inevitable accident Will not excuse performance of contract— Where its essential purposes are still capable of accomplishment — Party not relieved from obligation when he retains consideration for promise — School house partial subject of contract — Blown down — Contract still capable of performance — Law of contracts — Act of God.
    
    1. Inevitable accident will not excuse the performance of a contract where its essential purposes are still capable of substantial accomplishment, though literal performance has become physically impossible.
    ¡2. When a party has one or the other of two modes of performing a contract, and one of them becomes impossible by the act of God, he is bound to perform it in the other niode.
    3. A party will not be relieved from the obligations arising from his contract when he has received and retains the consideration for his unfulfilled promise.
    4. Where, in consideration of the conveyance by a board of education, of a. lot on which was situated a school house and other buildings suitable for a public school, the vendee agreed to convey to - the board another lot then vacant, and to remove, reconstruct and rebuild thereon, the school house, so that it would he in a suitable and proper condition for school purposes, it is not a defense to an action for damages for failure to perform the contract with respect to the school house, that it was blown down by a storm, and could not, on that account, be removed as a standing building. The contract was nevertheless capable of substantial performance.
    (Decided December 18, 1900.)
    Error to the Circuit Court of Allen county.
    This is a proceeding to reverse a judgment of the circuit court affirming a judgment rendered adversely to the plaintiff in error by the common pleas, in an action brought to recover of the defendant in error, damages for the breach of a contract. The action was tried and decided upon an agreed statement of facts, which, so far as they are deemed material, will be found in the opinion.
    
      Gable & Parm,enter, for plaintiff in error.
    The contract involved in this action was made in good faith, viz.: The defendant required a part of the school grounds for railroad purposes, obtained the same and went into the possession thereof, and thereby destroyed the premises for school purposes. In consideration of which, as appears from a fair interpretation of the contract, the defendant, without any provision relieving him, agreed, in effect, to place the school board in as good a situation as before. The contract clearly shows that the matter of this, contingency of the “house falling down” or being destroyed was within the contemplation of the parties at the time, and the contract makes it incumbent upon the defendant, not only to remove the building, but to rebuild and reconstruct it, which language would never have been used if the parties had not contemplated this possibility. The defendant did not provide in his contract that he was not to perform it in event the building, by unavoidable accident, was destroyed before he began the removal. In short, he is not excused because of the act of God, since it is his contract obligation, and, in his contract he did not provide against such a contingency, but rather provided that he would, in any event, remove, rebuild and reconstruct the school building. If the contract had simply provided that the said Townsend shall remove said building and repair the same, then under the well settled rules of construct]' on, the defendant would be required to rebuild. Meriwether v. Lowndes Co., 7 Southern Rep., 199.
    
      The meaning of “repair,” as defined by the decisions, is “to rebuild.” The language used in the contract is “remove, reconstruct and rebuild.” It would be a strange distinction to say that if the party agreed to remove and repair that he would be compelled to rebuild, even though an act of God intervened and destroyed the structure, and, then to say that where he agreed to remove, rebuild and reconstruct, and the act of God intervened and destroyed the structure, he would not be compelled to rebuild. Taylor on Land, and Ten. (8 Ed.l, Sec. 357.
    If in every contract the condition is implied, though not written therein, viz., that the subject matter of the contract shall continue in existence, as in this case the building, then why does not the act of God always excuse a party from his contract obligation, and why were not the defendants in the 25th Conn, and in the 25th N. Y. cases cited, relieved from the performance of their contract. They agreed to do no more than the defendant in this case, yet the court held that they were not to be relieved from contract obligations. This is not the class of cases for personal services, for the delivery of a specified chattel, where the chattel is lost, destroyed or dies, or where the person to perform services of a personal nature by subsequent cause is prevented; nor is it a case where a person agrees to sign in a certain hall or building which is afterwards destroyed, because in all such cases, a clear distinction is apparent from the one at bar. Beach on Modern Contract Law, Sec. 218.
    . We maintain that this does not constitute a defense, because it was not stated that he could not provide a school house; and as that was what he contracted, in effect, to do, he is not relieved.
    
      A person is relieved from the performance of a duty imposed by law when prevented by some act coming within the classification known as the act of God, but he is not relieved wholly or partially from his contract obligations, even though the act of God (so-called) intervened. If, in the act of removal, or before, a part of the material composing the structure was lost, then it became necessary in the act of restoring and rebuilding, which the defendant at his own expense undertook to do, that he supply such material necessary in the reconstruction and rebuilding of said building. And there was no less a duty incumbent upon him because the building was entirely demolished. School Dist. No. 1. v. Dauchy, 25 Conn., 530; Thompkins v. Dudley, 25 N. Y., 272.
    The above cases are the leading ones upon the questions involved.
    The defendant did not simply agree to remove the school house from one location to another, but he agreed to “reconstruct and rebuild the said building so that it mil be in suitable and proper condition for school purposes.” Central Trust Co. v. Railroad Co., 31 Fed. Rep., 440.
    If, however, the act of God rendered it impossible for the defendant to perform, then the finding and judgment should have been for the plaintiff for damages and costs, because the answer admits the conveyance of the land to defendant, and the agreed statement of facts, that he took possession thereof on November 12, 1895, and “built a railroad over and upon it.” Beach on Modern Contract Law, section 216 and cases cited; School Dist. No. 1 v. Douchy, 25 Conn., 530; Willey v. Fredericks, 10 Gray, 357; Meriwether v. Lowndes Co., 89 Ala., 362.
    
      Even though the house may have been demolished, it was necessary for the defendant to rebuild the samé, or, in event of his failure so to do, to pay the reasonable cost of doing that which he' agreed to do. To the same effect, Reach, section 1736; Doolittle & Chamberlain v. McCullough, 12 Ohio St., 360; Adams v. Nichols, 19 Pickering, 277-8; Steel v. Buck, 61 Ill., 343.
    
      W. B. Richie and W. H. Leete, for defendant.
    The defendant by the express terms of the contract agreed “to remove the present school house building located on, etc., and front the same.” It is evident --'that the parties had in their minds the structure then in use as a school building, not a pile of wreckage and debris, that which at some time had been a structure; the contract referred to the conditions existing at the time, the existence of a building, a structure then being used as a school house, and it was this structure which toas to be removed, fronted and rebuilt.
    
    We see but one reasonable interpretation of this contract, i. e., when the plaintiffs had actually delivered the building to the defendant, he was to remove it, and front it upon the highway, and in the event of injury to the building caused by the defendant,-he was to be answerable for that injury; that unti] the building was actually in the possession of the defendant, he was not answerable for its safety.
    Plaintiffs further insist that defendant is bound by the covenant to rebuild and reconstruct, and that there is no escape from the covenant; but we insist that these terms can only be taken to mean, that the defendant was bound to make good any injury that might come to the building through the performance of the primary covenant to remove the building. Railway Co. v. Hoyt, 149 U. S. Rep., 1.
    The Supreme Court in the case above cited uses almost the identical language of Bailey v. DeCrispigney, L. R., 4 Q. B., 185.
    But that court went further, and said: “That it is on this principle that the ‘act of God’ is sometimes said to excuse the breach of a contract. This is an inaccurate expression, because where it is an answer to a complaint of an alleged breach of contract that the thing done or left undone was so by the ‘act of God;’ what is meant, is, that it was not within the contract.”
    By the modern understanding of the law we are not bound to seek for a general definition of the term “act of God,” or vis major, but only to ascertain what kind of events were within the contemplation of the parties; this becomes apparent if one attempts to frame a definition of the term “act of God.”
    We cannot arrive at a more distinct conception than this: “An event which, as between the parties, and for the purpose of the matter in hand, cannot be definitely foreseen or controlled.” Pollock, Principles of Contracts, page 362.
    This being the English rule in cases similar to the one at bar we can see but little cogency in counsel for plaintiffs arguing for, and citing the English rule as to repair between landlord and tenant, for if the argument would not tend to support the proposition in England, how much less available is it here in this country where the law of landlord and tenant has been so largely modified.
    An American case in point is Butterfield v. Byron, 27 N. E. Rep., 667, citing 79 Mich., 47; 80 Mich., 448; 58 N. Y. Sup. Ct., 10; 85 Va., 500.
    
      Beach in his work on Modern Contracts, Vol. 1, page 217, discusses the question and sustains the position taken by the defendant.
    The attention of the court is also called to the Board of Education v. Townsend, 15 C. C., 674, 8 Circ. Dec., 732, where the decision of the circuit court in this case is given at length.
   Williams, J.

The defendant in error, desiring to obtain for the Lima Northern Railway, the school lot in one of the sub-districts of Bath township, in Allen county, on which there was located a brick school house and other necessary buildings, entered into a written agreement with the board of education, the-plaintiff in error, on the 7th day of November, 1895, whereby he agreed that in consideration of the conveyance by the board, of the school lot for the use of the-railway, he would, within sixty days from that time, convey to the board another described lot, then vacant, and remove thereto and reconstruct and rebuild thereon, the school house “so that it will be in a suitable and proper condition for school purposes.” And he further agreed that he would remove the wood house and other out buildings to the new site, and place them there in proper place and condition, dig-a well, put a. good pump in it, and construct a good and suitable fence around the lot. The board, in performance of the agreement on its part, on the 12th day of November, 1895, conveyed the school lot to the railway company, w7hich then took possession, constructed its road over the same, and has continued in its. occupation. And the defendant performed all the stipulations of the contract on his part, except the one by which he agreed to remove the school house to the-new site and there reconstruct and rebuild it. Having failed and refused to perform that part of his agreement, the board proceeded to, and did erect on' the new site, at a cost of $1,349, a new school house exactly like the one that was on the lot conveyed to the railway company, except the addition of a cupola, which cost fifty dollars. The reasonable cost of building a school house on the new site, of the same size and material as the one which the defendant agreed to remove, reconstruct and rebuild there, it is agreed in the statement of facts, would be one thousand dollars. After having made due demand of the defendant, the board of education brought the action below to recover, as its damages for his breach of the contract, the amount expended in the building of the new school/ house. The defense, which is admitted to be true, is based solely on the ground that on the 28th day of November, 1895,> the school house mentioned in the contract was blown down and demolished by a violent wind storm so that it “could not, as a school house,, be removed.”

The effect of the storm, it is claimed, rendered im-' possible the performance by the defendant of that stipulation of the contract by which he undertook to remove the school house and reconstruct and rebuild it on the new site, because its existence and identity as a building were destroyed, and that discharged him from all liability on his undertaking. It appears to be accepted by the authorities that, as a rule, there is an implied condition in executory agreements, to the effect that their performance shall not be rendered impossible by the intervention of unforeseen,accidental and uncontrollable superior agencies, and that their performance will be excused when it is prevented by such agency; as where there is a contract for the delivery of specific property at a future time, and before tbe time of delivery arrives, tbe property is destroyed by inevitable accident. But, it is an important part of that rule, that tke_\intervention of such inevitable accident will not excuse performance when the essential purposes of the contract are still capable of substantial accomplishment, although a literal performance has become physically impossible. 7 Am. & Eng. Ency. of Law, 2d ed., 14=8 and cases there cited. White v. Mann, 26 Me., 361, 368; Williams v. Vanderbilt, 28 N. Y., 217, 223; Robson v. Mississippi River Logging Co., 61 Fed. Rep., 893.

The impossibility of performance of the contract by the defendant is supposed to have arisen from the fact that, as the building was blown down, it could not thereafter be removed “as a school house,” that is, as a standing building. But, to remove it in that wray was not exactly the obligation of the contract. The school building is spoken of in the” contract as the thing to be removed, and not as designating the manner of removal. It is practicable to remove a building intact; but that is not the only way. It may be removed, within the common understanding, by taking the material and reconstructing or rebuilding it at another locality. Which method w-ould, in this instance, have been the more practicable and less expensive, does not appear. But the latter appears to have been in the contemplation of the parties; for, the contract is not only that the defendant should remove the school building from ydiere it stood, but also that he should reconstruct and rebuild it on the new site, so that it should be in suitable and proper condition for school purposes. To '^reconstruct is to rebuild, and to rebuild is to “build up again; to build or construct after having been demolished.” Century Dictionary. Nor is the meaning of the term restricted to the erection of the new building on the site of the old one. So that, notwithstanding the school house was blown down by a storm, it remained possible for the defendant to reconstruct and rebuild it on the new school site and thus perform his contract, not only substantially but strictly and exactly. This construction of the contract is strongly accentuated by reference to the provision for removing tbe wood house and out buildings. These buildings probably being small wooden structures, the agreement with respect to them is, simply that the defendant shall remove them to a proper place on the new site and there put them in proper condition. The absence of any stipulation to reconstruct or rebuild them, shows that those terms were used understanding^ and accurately with respect to the school house. It seems evident, looking to the entire agreement, that the essential purpose which the parties had in mind was, that there should be placed by the defendant, without expense to the board of education, the same facilities in the way of buildings for carrying on the public school there, that existed at the time of the contract on the lot then owned and in use by the board. And if, because it was cheaper to do so, or for other reason, the defendant had constructed on the new site entirely new buildings, equivalent of the old ones, that would have been a substantial compliance with his contract, which the board of education could not refuse to accept. The most favorable view that can be taken of the case for the defendant is, that under the contract two disitinct modes of performance were open to him; one by removing the school house as a standing building by means of jacks and rollers, or other appliances, the other by tearing it down and using the material for its reconstruction, either of which he was at liberty to adopt, and either of which, it may be conceded, would have been a sufficient compliance with his contract. Though the former mode of performance became impossible, the latter was not.. And/“it can hardly admit of contradiction,” said the-vice-chancellor, in Barkworth v. Young, 4 Drewry, 1, 24-25, that where a party is allowed at his option, to-perform his contract in “one or the other of two modes; and one of them becomes impossible by the act of God he is bound to perform it in the other mode.” And see State v. Worthington, 7 Ohio, 171-172. This rule rests upon the substantial reason that, so long as the contract is capable of performance in any mode contemplated by the parties, its performance cannot be said to have become impossible. A clearer case fob the application of the rule than the one before us can hardly be conceived. Beside, the act of God, so-called, which excuses the performance of a contract because that has become impossible, does not necessarily discharge the party from the obligations arising from the contract, except, it may be, when the contract is wholly executory on both sides. If an artist contracts to paint a picture for ten thousand dollars received from his patron, and thereafter becomes incapacitated from blindness to fulfill his promise, by what right is he justified in claiming the money? We are not aware of any principle, and have not been referred to any adjudicated case, that would give absolution from the obligations of a contract to a party who has received from the other full consideration for a promise which the former has become unable to fulfill, and at the same time protect him in the enjoyment of the consideration paid. The act of God may properly lift from his shoulders the burden of performance, but has not yet been extended so as to enable Mm to keep the other man’s property for nothing. ■ It is plainly apparent from the contract in hand, that the parties, as the basis of the agreement, estimated the value of the lot conveyed by the board of education to the railway company to be as much more than that of the lot conveyed to the board as it would cost to place on the latter a school house, in suitable and proper condition for school purposes, and other conveniences for a public school, equivalent to those on the lot owned by the board when the contract was made. And, in so far as the defendant has failed to do those things, he has received from the board a valuable consideration which he retains, and for which he has not given what he promised, nor anything whatever. It appears from the agreed statement of facts that the reasonable cost of doing what the defendant so failed to do, is one thousand dollars, which amount the plaintiff expended in the fall of 1896, toward placing a school house on the newly acquired site, after demand on the defendant to perform his contract in that behalf, and his failure to do so. We think the judgments below should be reversed, and judgment rendered for the plaintiff in error.

Judgment accordingly.

Davis, J.,

dissenting:

The general rule Avhich is so clearly stated in the majority opiMon is incontrovertible. There is an exception to it, however, which is equally Avell recognized. It is thus formulated in 1 Am. & Eng. Ency. Law, 2nd ed., 590: “It has long been conceded that where a contract is entered into, of a continuing character, or to be performed at a future time, dependent upon the continued existence of a particular person or thing, or the continuing ability of the obligor to perform, subsequent death, destruction, or disability will excuse the obligor from compliance with the terms of the contract.”

■ It seems to me that the construction put upon the terms of this contract is forced and unwarranted by the language of the agreement. These are the words of the contract: “Said James B. Townsend further agrees within said time, to remove the present school house, * * * and rebuild and reconstruct the said building, so that it will be in suitable and proper condition for school purposesTownsend does not agree here to build a new school house. He only agrees to remove the present school house. He does, not agree to remove the materials when it ceases to be a school house, and to rebuild and reconstruct the building from these materials. He agrees to remove the present school house, and to rebuild and reconstruct the said building, that is, the present building,, so that it, that is the present building, will be in suitable and proper condition for school purposes. “Rebuild” does not always mean to build anew. It has a very common secondary meaning, for example, “2. To make extensive repairs and alterations in.” Standard Dictionary. From these considerations it appears to me to be the clearly expressed intention of the parties to this agreement that Townsend should remove the school house to its new site and put it, the-identical school house, “in suitable and proper condition for school purposes.” That is the natural and obvious import of their language. If Townsend’s contract obligation was to build a new school house, why should he be required to put it in suitable and proper-condition for school purposes? The condition is implied in the obligation itself.

The argument that the railroad company has the plaintiff’s land without having given all of the agreed consideration therefor, has little weight with me. It is based on an assumption of the very thing in dispute here, namely, that ToAvnsend agreed to re-erect the school house, and not merely to remove it and put it in condition for school purposes. If he did not agree to rebuild the structure, in case it was destroyed by the act of God, then the argument of the majority falls to the ground; for the plaintiffs have already received all of the consideration which he was to give in the exchange of property in such case. Other objections might be urged against the reasoning of the majority; but no good purpose would be served by extending the discussion.

In my opinion, when the tornado destroyed the school house, Townsend was released from the obligation to remove that building and to put it in suitable and proper condition for school purposes; and therefore I maintain that the judgment of the circuit court ought to be affirmed.  