
    Clark v. Franklin.
    
    January, 1836.
    Richmond.
    Covenant— Declaration — Snfficieiicy—Case at Bar. — In covenant by F. against C. the declaration sets forth a covenant, whereby plaintiff, a carpenter, under-iook the carpenter’s work of a wooden house for defendant, at certain speciüed prices per piece, the whole to be done in a workmanlike manner, and defendant contracted to furnish the materials as they should be wanted; and alleged, that plaintiff entered upon and executed a great part of the work; and then alleged breaches, 1. that defendant did not furnish materials, and 2. that, in consequence of defendant’s own negligence, after plaintiff had erected the house and executed a large portion of the work, the house was blown down by tempest, and defendant refused to pay the plaintiff for the work that had been done: Held, the declaration is good upon general demurrer.
    Contract to Perform Carpenter’s Work — When Carpenter Entitled to Recover for Work Actually Done.— Upon one entire contract to perform carpenter’s work, the carpenter is entitled to recover the price of the work actually done, though the whole is not completed, if the employer either prevents *him from completing the whole, or refuses to permit him to complete it except on such conditions as he has no right to impose:
    5ame-Work Partly Done — Destroyed by Accident— Whose Loss. — And if the work partly done, is destroyed by accident or act of God, much more in consequence of the employer's own negligence, the employer has no right to insist that the carpenter shall bear the loss.
    Same — Duty of Carpenter to Insure against Accident— Rights Where Employer Prevents Carpenter from Rebuilding. — A carpenter undertaking to build a house on the land of another, cannot be bonnd to insure the house against accident or tempest until fully completed, without agreement to that purpose, express or plainly implied, and valuable consideration for the risque; and, in case of loss by such causes, before the work completed, the carpenter is entitled to compensation for the work actually done at the contract prices; but, if the defendant prevents him from rebuilding and completing the work according to contract, he is not entitled to the contract prices for the work remaining tobe done, but only to damages for being deprived of the benefit of the contract.
    By articles under seal between Clark and Franklin, Franklin covenanted, that he would build a two-story wooden dwelling house for Clark upon his land, twenty feet wide and between forty and —— feet long, at certain prices per piece, particularly specified, for the carpenter’s work; and, as there would be other work necessary to be done to complete the building, Franklin covenanted to do this work also, at prices proportioned to those specified for other work; the whole work to be done in a neat, elegant and workmanlike manner; and Clark was to furnish all the materials.
    Franklin brought an action against Clark in the circuit court of Pittsylvania, for a breach of this covenant: and in his declaration, after setting out the covenant, he alleged, that he entered upon the work in pursuance of the articles, and did a great part thereof (specifying the work done particularly), in a neat, elegant and workmanlike manner; and then averred, that the defendant did not and would not furnish him with materials, from time to time as the same were required, to enable him to do the work, as according to his cove-riant he ought *to have done; and further, that after the work before specified as having: been done, had been done by the plaintiff, and the house had been raised, covered in, and nearly completed, the same, by the negligence of the defendant, in not underpinning it and in suffering it to remain raised on high blocks throughout the winter, was in a violent tempest blown down; and that the defendant afterwards would not permit the plaintiff to work on the house, and would not pay him for the work he had done, at the prices stipulated in the articles, as by his covenant he ought to have done; and so the defendant had not kept his covenant, but had broken the same &c.
    The defendant first put in a general demurrer to the declaration, in which the plaintiff joined. The court gave judgment for the plaintiff upon the demurrer; and then gave the defendant permission to plead three pleas in bar. 1. That he had not broken his covenant. 2. After taking oyer of the articles, he pleaded, that he furnished the plaintiff with all the proper materials for ¿he work, of good quality, as the same were from time to time required, at the place where the house was to be built; but the plaintiff so unskilfully prepared those materials, and put them together in such an unskilful and unworkmanlike manner, that the house was not built in a neat, elegant and workmanlike manner, but tumbled to the earth, broke to pieces, and was of no value to the defendant; and it was the unskilful and unworkmanlike manner in which the house was built, and not the-defendant’s negligence, that caused the house to fall down ; and after the house had so fallen down, the defendant did not prevent the plaintiff from working upon the house; and so the defendant was not bound to pay the plaintiffs for the work so done by him upon the house, according to the true intent and meaning of the articles. 3. He pleaded, that the plaintiff did not build for the defendant, at the place where &c. *a house in a neat, elegant and workmanlike manner, or any manner of house, according to the true intent and meaning of the articles,' and that the plaintiff was not prevented by the defendant from building a house for him at the place where &c.
    The plaintiff took issue on the first plea. He put in a special replication to the second, traversing each and every allegation of fact in it, and tendering an issue; which was joined. To the third, he replied, that the defendant did prevent him from building a house for him at the place &c. and tendered issue, which was joined.
    At the trial, the defendant filed five bills of exceptions to opinions of the court.
    1. He moved the court to instruct the jury, that if they should find from the evidence, that the carpenter’s work done by the plaintiff for the defendant, wás not executed according to any approved plan of architecture, but was so unskilfully done as to impair its strength and durability, then they should find for the defendant, whether the plaintiff undertook to assure the house to the defendant or not; which instruction the court refused to give, and the defendant excepted.
    2. The defendant asked an instruction to the jury, that if they should find from the evidence, that he applied to the plaintiff to rebuild the house, without requiring any alteration of the original plan, and that the plaintiff refused to rebuild the same, then the plaintiff was not entitled to recover any damages; but the court refused to give the instruction, and the defendant excepted.
    3. The defendant asked another instruction to the jury, that if they should find from the evidence, that the plaintiff had partially executed his covenant, and that after he had raised and covered in a house intended for the defendant, the same was blown down by a storm of wind, and that the plaintiff had been prevented from ^rebuilding the same by the defendant ; in such case, the true measure of the plaintiff’s damages was the loss of the profits of such a job of work, not the value of the work and labour performed in erecting the building which had been so destroyed by wind. The court refused to give the instruction, and the defendant excepted.
    4. The plaintiff having offered evidence to prove, that he commenced building the house for the defendant, and did much work upon it, and that it was blown down by a violent wind, after it had been raised and covered in, and much other work done, the defendant, thereupon, moved for an instruction to the jury, that unless they should find from the evidence, that the plaintiff did build and complete for the defendant such a house as was mentioned in the covenant, or that he was prevented from, building such house by the defendant, they ought to find a verdict for the defendant. This instruction the court refused to give; and it instructed the jury, that if they should find, that the plaintiff commenced the building of the house, and raised and covered in the same, and did other work upon it, and that the work was all done in a neat, elegant and workmanlike manner, and that the house was blown down without any fault of the plaintiff, in such case, the plaintiff was entitled to compensation for such work as he had done in and upon the house. The defendant excepted.
    5. The last bill of exceptions stated, that the plaintiff having adduced evidence to prove, that he commenced the building of the house for the defendant, did much work upon it, and raised and covered it in' — that after the house was raised and covered in, it was blown down by a violent wind — that the work done by him on the house, was. done in a neat, elegant and workmanlike manner — that the house was blown down in consequence of the same being left by the defendant to stand *upon blocks, instead of being underpinned —that after the house had been blown down, the defendant refused to permit the plaintiff to rebuild it, unless he would agree to rebuild it on a different plan, and unless he would agree to give up all claim to compensation for the work he had done on the house which had been blown down; thereupon, the court, on the motion of the plaintiff’s counsel, instructed the jury, 1. That if they should find that the house was blown down, without any default on plaintiff’s part, and blown down in consequence of the defendant’s omission to have it underpinned, the plaintiff was entitled to compensation for such work as he had done in and about the house. 2. That if the jury should find, that the state of facts, which the plaintiff had offered evidence to prove, was thereby established, then the plaintiff was entitled to compensation for the work by him done in and upon the house that was so blown down; the plaintiff admitting, that if the house was blown down in consequence of the badness of the work, or any default on his part, he would not be entitled to any compensation for the work he had done. To these instructions of the court to the jury, the defendant excepted.
    There was a verdict and judgment for the plaintiff for 574 dollars with interest &c. from which the defendant appealed to this court.
    Johnson, for the appellant.
    Heigh, for the appellee.
    
      
      This case was not reported in its due order, because the record was mislaid for some time, so that the pleadings and facts could not be accurately stated.
    
    
      
      Contracts — Action on — Pleadings,—where an action of assumpsit is brought on an entire contract under seal, in which the covenants are dependent, and the pleader sets forth the contract in a special count, it is not sufficient for the plaintiff to aver his readiness and willingness to perform the condition precedent contained in the contract, but he mast go further and show a sufficient legal excuse for his nonperformance. Jones v. Singer Mfg. Co., 38 W. Va. 150, 18 S. E. Rep. 479, citing Clark v. Franklin, 7 Leigh 1. To the same effect the principal case is cited in Kern v. Zeigler, 13 W. Va. 716; Schwarzbach v. Protective Union, 25 W. Va. 649. See also, Gas Co. v. Wheeling, 8 W. Va. 369.
    
    
      
      Same —Same —Rights under Contract — Destruction of Building by Fire. — One who contracts to put a tin roof on a dwelling house at so much per square, if such house is consumed by fire before the roof is completed, without the fault of the contractor, he is entitled to recover on a Quantum meruit for the work done under the contract. Such a contract is not one of risk or hazard and the contractor is not an insurer of the property against destruction from fire, or other canses. Hysell v. Sterling Coal, etc., Co., 46 W. Va. 158, 33 S. E. Rep. 96, citing Clark v. Franklin, 7 Leigh 1.
    
   TUCKER, P.

The first question in this case arises upon the demurrer to the declaration. The causes of the demurrer not having been specially set forth, we are. left to infer the probable objections to it. It appears to recite accurately the contract between the parties and to aver distinctly the plaintiff’s performance in part. It then alleges the failure on the part of the defendant *to furnish materials, the overthrow and destruction of the house arising from the defendant’s having failed to have it underpinned, and from a violent tempest which blew it down, and that after that event, the defendant would not permit the plaintiff to work upon the house, and would not pay him for the work he had done. The breach then consists in the defendant’s not permitting' the plaintiff t.o finish the work, whereby he would have earned the stipulated wages, and in not paying him for the work actually done before the destruction by the tempest. Now I take it, that the supposed fault in the declaration, consists in the omission to aver that the plaintiff did complete the house, and in laying as a breach that the defendant after the destruction of the building, refused to pay for the work that had been previously done. For it was said in the argument, that the contract was entire, and that the workman could recover nothing until the whole work was completed, as the covenant was dependent.

Nothing is more true than where a contract is entire, and the covenants are dependent, the plaintiff is, in general, obliged to aver and prove a complete performance of all that was to be done and performed on his part, before he is entitled to demand payment from the other party. But to this well established rule, there is the equally well established exception, that where the defendant has prevented a performance by the plaintiff on his part, it is not necessary that the plaintiff should aver or prove a ■complete performance to entitle him to his action. He may recover without doing so, and it is sufficient to shew a readiness to perform, and that he was hindered by the defendant. 1 Chitt. Plead. 318; 2 Wms. Saund. 352, n. 3; 1 Gwyl. Bac. Abr. Conditions, Q. 3, p. 678; Jones &c. v. Barkley, 2 Doug. 684. The declaration here contains two distinct allegations, which shew the hinderance by the defendant: 1. that he failed to furnish materials, which was a precedent *act to be done by the defendant: 2. that after the house was blown down, the defendant would not permit the plaintiff to proceed with the work. “If a man be bound to build a house &c. he is excused, if the obligee -refuse to let him build it, for he cannot come upon the land against his will;” 1 Bac. Abr. 678. If indeed the defendant can shew góod reason for hindering him, then the hinderance will be no excuse. As, -in this case, if the blowing down of the house had proceeded from the plaintiff’s fault, the defendant might well have refused to go on with the building. Or, if the plaintiff had refused to go on with the building unless he was paid for the work that had been destroyed, the defendant would have been justified in refusing to permit him to proceed, provided he could shew that the plaintiff had no right to insist on such a condition. Now, this was, very obviously, the real question between these parties. The house was blown down by a tempest which neither party could have averted, and the question really was, on whom the loss from this act of God should fall. If It must be borne by the defendant, then he can have no excuse for refusing to let the plaintiff proceed with the work according to contract, and is bound to pay for that which had been actually done according to the contract prices. Moreover, as he has deprived the plaintiff of the profits of what may have been a gainful contract, and may have involved him in the expense of procuring workmen, and making other preparations for the fulfilment of his engagement, he is liable for such damages as a jury of the country may ascertain to have been incurred by him by reason of the breach of contract. He is not entitled, indeed, to the full contract price of all the work which was to have been done, whether it was done or not.

But as a workman thus unexpectedly thrown out of employment, must sustain injury thereby, that injury ought to be fairly estimated and compensated by the verdict of a jury.

*The whole case then turns upon the question, Who must bear the loss caused by the storm? I answer, the defendant. This cannot be denied, unless it can be shewn, that there was an engagement, express or implied from the nature of the contract and transaction, that the builder should take the risque. For I take it to be an axiom, that no man can be bound to insure the property of another, but by contract express or implied, and on adequate consideration. Now, in this case, the property was emphatically Clark’s. As soon as the house was raised, it became a part of his freehold. Nay more, the timbers and all the materials were his, for they had been furnished by him. And as to the work, that became his property at every step of its progress: for every shingle that was nailed on, and every plank that was laid, became, in its new condition, — ■ fashioned land improved as it was, and applied to its proper purpose in the building, by the skill and industry of the workman, — the exclusive property of Clark. It was Clark’s house, then, that was blown down, and Clark must abide the loss, unless Franklin has by contract, express or implied, engaged to abide and insure against the risque. Were it otherwise, the destruction of the house by tempest, when a single pane of glass alone was wanting to its completion, would equally fall upon the workman.

That there was an express contract or engagement on the part of Franklin to take the hazard of destruction by fire or tempest is not pretended. Was such an engagement implied? I think not. If the builder had undertaken to furnish the materials, and to build the house out and out, for a gross or lumping sum, there might be more reason for the suggestion that this was a contract of hazard : we might suspect, that the gross sum agreed for, covered perhaps the hazard, which the builder might be supposed to have taken upon himself from the form of the contract. But here is a contract *by the measurement, — by the piece; a contract for the mere compensation usually allowed for labour and skill bestowed. There is no room to imply that a premium was given for the risque, and therefore there is no room to imply insurance or agreement to abide the risque. If we could imply it, the hazard instead of diminishing, would increase, precisely in the ratio that the builder had fulfilled his undertaking; for he would be liable until the last nail was driven into the building, and this too without receiving any consideration for this implied contract of assurance.

• The implied agreement to abide the risque of loss by accident or by act of God, if it exist at all, requires to be defined. Does it extend only to the carpenter’s own labour? Does it embrace the materials? Does it comprehend the labour of others? If we consider Ross v. Overton, 3 Call 309, as applicable to this case (which has been cited as applicable, though I do not think it is so), then the builder is answerable for all. Indeed, if answerable at all, by what exact limit shall we circumscribe his responsibility? And if we do not circumscribe it, then he is to be considered as responsible, not only for his own labour, but for the materials, and for the plaisterer’s and bricklaj'er’s, and other bills; and pari ratione, if they had contracted to do their part of the work in like manner, they too must be deemed insurers, and thus each builder would become an insurer of the whole building until ready for delivery. These consequences shew, I think, the fallacy of the position that the workman must abide the hazard.

There are few cases to be found upon this subject. Chitty in his' treatise on contracts, p. 170, says — “The destruction of work by an accidental fire or other misfortune, before it is finished or delivered, does not deprive the workman of his right to remuneration, to the extent of the work performed; unless, by the express and uniform custom of any particular trade, no payment is to be *made until the work be completed or delivered.” He cites Menetone v. Athawes, 3 Burr. 1592, and Gillett v. Mawman, 1 Taunt. 137. The first of those cases is very imperfectly reported. A ship was sent to a shipwright’s dock to be repaired, and she was burned by accident when the repairs were nearly finished; yet the shipwright recovered for the repairs so far as they had progressed. The second case was that of a printer. He had undertaken to print a translation of The travels of Anacharsis for the. defendant, who furnished the paper; the whole was burned by accident (without default of the printer) when the work was nearly completed ; the printer claimed compensation for the printing; the defendant relied on the custom of the trade, “that where a work is burnt before it is completed, the printer is not allowed for his labour.” The counsel and the court distinctlj’ admit the general law to be, that the destruction by fire or misfortune, does not deprive the workman of his right to remuneration for the work done; but the court decided, “that the custom of the trade was fully proved, and as far as it extended, controlled the general law.”

Upon the whole I am of opinion that the declaration is substantially good, and that judgment was rightly given for the plaintiff on the demurrer.

Then, as to the defendant’s exceptions. The first and second were to the refusal to give instructions, which I think were too broadly asked, and therefore properly refused. The instruction moved for and set forth in the third bill of exceptions, ought not to have been altogether refused, but should have been given with a modification, or rather explanation — that the plaintiff was entitled to the full contract price for the work actually done, and was also entitled to such damages for the loss of the residue of the job as a jury might think proper to give, or to a fair compensation for the loss he sustained by his disappointment, but not to the full value *of the work .which yet remained to be done. The instruction given in the fourth exception should also have been qualified by adding to the hypothetical case supposed' — '“that the plaintiff had been willing to complete the work but had been wrongfully prevented by the' defendeant. ” The instructions stated in the fifth exception, are, I th'ink, substantially right.

However, on the ground that the third instruction asked for the defendant, should have been given with the modification I have suggested, instead of being wholly refused, which may have led to an exorbitant verdict, I think the judgment should be reversed, the verdict set aside, and the cause sent back for a new trial.

The other judges concurred. The entry was,' — “that there was error in this, that the court ought to have given the instruction asked for in the third bill of exceptions, qualified however by this further and additional instruction, that if the appellee was wrongfully arrested by the defendant in proceeding to complete the building, the jury was authorized to allow him such compensation in damages for his disappointment as should to them appear just and reasonable.” Therefore, judgment reversed with costs, and cause remanded to the circuit court, with directions to set aside the verdict, and order a new trial of the issues, upon which the instruction above indicated should be given if asked for by- either party. 
      
      It seems to the reporter, that the court misapprehended the import of the third bill of exceptions —that the instruction asked for by the defendant, as there stated, related to the measure of compensation for the work which had been performed on house which was destroyed, not for the defendant’s breach of his covenant in refusing to let the plaintiff complete the building. If so, the circuit court was right, according to the opinion of this court, in refusing the instruction. But this is unimportant in respect to the authority of the decision. — Note in Original Edition.
     