
    De Witt C. Hayes, Respondent, v. Simeon S. Gross, Appellant.
    
      Contract to do work upon a building, which is destroyed before, its completion — the contractor may recover for work actually done — evidence as to value.
    
    In an action brought to recover for work clone apd materials furnished, it appeared that the plaintiff, a carpenter, executed a contract by which he agreed to do the inside carpenter and joiner work Upon a hotel Which the defendant was building "for a certain shm, of which seventy-five per cent was to be paid in installments as the work progressed, and the balance upon its completion. Before its completion, but after the plaintiff had performed a large part of the work, the building was destroyed by fire, without fault on the part of either party.
    
      Held, that the burning of the building excused the plaintiff from further performance of the contract;
    That the measure of damages was the value of the labor done and the materials furnished and the plaintiff’s proportionate profits up to the time of the fire;
    That the plaintiff was entitled to recover the difference between the amount already received and the value of the labor and materials which he had added to the defendant’s premises; but that he was not entitled to.be credited with the value of certain materials, which, although purchased for use in such premises, had not been actually placed in position at the time of the fire;
    That, although the action was not upon the contract, no error was committed in allowing the plaintiff the contract rates for his labor and materials as the con-, tract was the best evidence of their value, .
    Appeal by the defendant, Simeon S. Gross, from a judgment of the Supreme Ooiirt in favor of the plaintiff, entered in the office of the" clerk of the county of Fulton on the 8th day of October, 1895, upon the report of a referee.
    The action was to recover for labor performed and materials furnished by the plaintiff in the erection of a hotel building under a contract with the defendant, the owner thereof, which building after the plaintiff had nearly performed his contract was. destroyed by fire; also, for extra work done by the plaintiff thereon at the defendant’s request. The building was a large brick structure, and when ready for the inside carpenter and joiner work, the plaintiff agreed with: the defendant to furnish the materials and do that work for $13,675, seventy-five per cent of the amount to be paid, from time to time as the work progressed,, upon the architect’s certificate, and the balance when the work was fully completed and accepted by the defendant and the architect. The plaintiff commenced performance in March, 1891; the building was destroyed by fire.October 2, 1891, before its completion.
    The referee found that the fire occurred without the fault of either party. While the plaintiff was engaged in his work, the defendant, by his other contractors and workmen, was also engaged upon other parts of the building. At the time of the' fire and for a considerable time prior thereto, the plaintiff had the keys of the building and kept it closed and locked during the night time, opening it in the morning. There was no agreement in this respect, At the time of the fire the defendant had paid the plaintiff $7,361.93 upon the contract, but the value of the work and the materials furnished by the plaintiff up to that time exceeded that amount. The contract contained no provision respecting the destruction of the building by fire.
    The referee held that the plaintiff was entitled to recover for the. work and materials furnished in performance of the contract up to the time of the fire at contract prices; also, for his extra work, and directed judgment against the defendant in the sum of $3,241.70, with costs.
    
      Edgar A. Spencer, for the appellant.
    
      A. D. L. Baker, for the respondent.
   Landon, J.:

When a builder agrees to erect and. complete an entire house, if the house is destroyed by fire before completion, the' builder can erect another, and if lie does not do so he is guilty of a breach of his contract. (Tompkins v. Dudley, 25 N. Y. 272.) But if a painter agrees to paint a certain house and the house is destroyed before, the painting is finished, it is impossible for him to complete his contract. If a néw house should be erected it would not be the house he had agreed to paint. Why should not the painter be paid for his- part performance?' It was no fault of his that full performance was impossible. ( Whelan v. Ansonia Clock Co., 97 N. Y. 293.) But why should the owner pay ? Because every stroke of the painter’s brush converted something of the painter’s labor and material into the property of the owner, and thus the fire destroyed' the owner’s property -and not the painter’s. If the painter had been painting a boat .'which he. had agreed to make and deliver to the vendee, and fire had destroyed it before delivery, the whole loss would have been his and not the vendee’s, since title would not pass until delivery. (Andrews v. Durant, 11 N. Y. 35.)

In Wolfe v. Howes (20 N. Y. 197) a mechanic agreed to do for an entire year, all the pot room work necessary to be done in the defendant’s, glass works for forty dollars per month, ten dollars to be paid monthly, the balance at the end of the year. He performed as he agreed from IVIay until December when he was disabled by sickness of which he subsequently died. His representative was held entitled to recover the sum unpaid for the time he actually served. Why not? It was impossible-for him to complete his contract, and the defendant had the benefit of what he did do.

If a trader agrees to sell and deliver to B. 607 bales of cotton, marked X, stored in his warehouse and does deliver 460 of them, and the remaining 147 bales are destroyed by fire before delivery,' of course he cannot deliver them, and the law excuses him. (Dexter v. Norton, 47 N. Y. 62.) But, the vendor being without fault, if, the vendee, refuses to return the 460 bales which' he has received and to which he has no title, he ought to pay for them unless the same fire also destroyed them. (Kein v. Tupper, 52 N. Y. 550.) Of course the loss of the undelivered bales falls upon the vendor.

In the case before us the defendant owned the building, and the plaintiff was under a contract with him to do certain specified carpenter and joiner work therein and to furnish the materials therefor, for a. price fixed for the whole, to be paid, however,- in installments as the work advanced. The plaintiff had performed a large part of the work as agreed, and had been paid several installments when the building was destroyed by fire without fault by either party. If the views above expressed are correct, then the plaintiff is excused from further performance, because it became impossible, without fault of his own, and he is entitled to recover for all the labor and material which he added to the house, because his further performance is impossible, and, therefore, cannot be interposed as an obstacle to his recovery, and also because what he thus added became the defendant’s property, and thus the fire destroyed the defendant’s and not the plaintiff’s property.

The learned referee placed his decision in favor of the plaintiff upon Millo v. Binsse (1 Keyes, 476), a case in its particulars almost identical with the one before us. The learned referee reluctantly yielded to the authority of that case, because of the similarity of its facts to this case, at the same time confessing that he could not harmonize it with the numerous cases which hold that when performance of a contract depends upon the continued existence of its subject-matter or of some other essential, the law implies that the contract is based upon such continued existence, aud such existence ceasing, the obligation of the contract ceases, leaving each party without recourse to the other on account of any breach of the contract. (Dexter v. Norton, supra; Goldman v. Rosenberg, 116 N. Y. 78; Lorillard v. Olyde, 142 id. 456 ; Stewart v. Stone, 127 id. 560 ; Taylor v. Caldwell, 3 B. & S. 826; 113 Eng. Com. Law Rep. 824.)

These cases simply denied the right of recovery of damages for breach of the contract.

In Dexter v. Norton the plaintiff sought to recover the damages he sustained because the defendant did not deliver to him the 147 bales of cotton which the fire destroyed.

In Goldman v. Rosenberg the plaintiff, sought to compel' the defendant to complete his purchase of a lot which had a valuable building upon it, that was destroyed by fire before the day fixed for the performance of the contract, or to charge the defendant with damage for his non-performance, the action being-for an accounting between the partners.

In Stewart v. Stone the patron of defendant’s cheese factory, at which the patron had delivered milk, to be made into cheese at a stipulated price, sued the defendant to recover for the cheese which was destroyed by the burning of the factory, without fault of the defendant.

In Lorillard v. Clyde both parties were interested in a corporation which the plaintiff was induced to enter, upon the defendant’s guaranteeing that it would pay a certain annual dividend for seven years. The corporation was dissolved at the suit of the Attorney-General at the end of five years. The plaintiff sought nevertheless to recover the dividend upon his shares of stock for the two years following its dissolution.

In Taylor v. Caldwell the defendant agreed to let the plaintiff his music hall for four nights. Before the first night arrived the .hall was destroyed by tire without fault of defendant. The plaintiff . sought to recover damages for non-performance.

In all these cases the plaintiff failed to recover, becaiise. in each case the law implied the condition of the continued existence- of the subject-matter of the contract or of an essential respecting it, That is to say, the defendant was not at fault for its breach.

In none of them was it decided that an innocent contractor who- has added his -labor and materials to the owner’s property cannot recover for them when the owner has lost his property by tire, and the contractor is by the. fire,' without fault on his part, both prevented and excused from adding the balance of labor and material which his contract called for. The non-continuance of the subject-matter excuses him from further performance ; but we see no reason why his employer should not bear his own loss and pay for the property which he acquired. When part performance has been made, and there is a legal excuse for further performance, then there is no legal defense to the demand for payment for part performance, unless it is in such a case as is suggested by Johnson, Ch, J., in Wolfe v. Howes (20 N. Y. 197), namely, that it was material that the defendants had received actual benefit from the. services of the plaintiff’s testator, and that quite, a different question would be presented-where the services actually rendered should prove valueless; as, e. g., if one should.be retained to compose an original literary work ’ and having- faithfully employed himself in preparation, should die. without haying completed any work of value to the employer.”1 The report adds that Comstock, J., and other judges concurred in this qualification.” In the case before us the defendant received actual benefit from plaintiff’s services, but because -of - the. fire lost it.

We think Niblo v. Binsse, upon which the learned referee relied, was. correctly decided; but, with due respect, we submit that the decision, was placed upon untenable ground. The court-said that it placed its decision upon the ground that the contractor was prevented from performing his contract by the'default of the owner in failing to keep on hand and in readiness the building in which the work was to be done, and that the owner was in default whether the building was destroyed with er without fault on his part..,- The.case shows that the building was destroyed without, fault of either owner or con- . tractor, If. the defendant was without fault in the destruction of his building, it is difficult to see how he was in default for not keeping it on hand.

In the Niblo case, as in the one under review, we think the destruction of the building prevented and excused the defendant from keeping it on hand, and that neither party could recover damages of the other upon account of the breach of the contract thereby caused.

Authorities in other States, while denying the right of either party to the contract to recover of the other damages for a breach of the contract when performance is defeated by the destruction of the building — except in cases like Tompkins v. Dudley, first above cited, where the terms of the contract preclude implying the condition of its continued existence — affirm the right of the contractor to recover for what he has done and furnished up to the time of its destruction. (Butterfield v. Byron, 153 Mass. 517; Cook v. McCabe, 53 Wis. 250; Haynes v. Second Baptist Church, [Mo.] 57 Am. Rep. 413.)

It follows that the judgment should be affirmed, unless the record shows some error to the prejudice of the defendant. The measure of damages stated by the learned referee in his opinion is the value of the labor and materials furnished, and his proportionate profits up to the time of the fire. He applied this rule by allowing the contractor the contract rates for his labor and material. This we think was right. He, however, allowed the plaintiff $309.10 for materials which he had procured in order to place them in or upon the building, but which he had not actually placed at the time of the fire. These items we cannot allow" since they had not been added to the building, and, therefore, were not defendant’s property. Although the action is not upon the contract, the contract affords the best evidence between the parties as to the value of the labor and materials furnished. There are authorities to the effect that where the contractor is to be paid in installments, upon the completion of' certain parts of the work, each installment becomes a debt as the particular portion specified is completed, and as to the incompleted portion at the time of the fire, no recovery can be had because the installment is not due. (Richardson v. Shaw, 1 Mo. App. 234; Clark v. Collier, 100 Cal. 256; Addison on Cont. [9th ed.] 809.)

If the action were upon the contract this would be so, but as it is not, the rule should not apply. The contract, no longer binds the parties, or, if it does, its breach is excused, and, therefore, the breach is not available to defeat recovery for what has been done under it.

Such we think is the sensible rule and. the one supported by the authorities in this State (Wolfe v. Howes, Whelan v. Ansonia Clock Co., Niblo v. Binsse, supra), also by the cases above cited from Massachusetts, Maryland and Wisconsin.

The defendant’s exceptions to the admission of the plaintiff’s books containing accounts kept by him with the “ Gross Hotel,” the building in question, and with the defendant, are not well taken. These accounts contained in detail the items of materials' and labor which tiie plaintiff furnished upon his contract and also various cash. items conuected with the performance of the contract. These items were verified by the testimony of the plaintiff and his assistant. They 'were not admitted because the book contained them, but because shown by competent testimony to be true. The record shows that the referee carefully and properly examined them and rejected such items as were not properly chargeable to the defendant, except the items amounting to $309.10 which we conclude to reject.

We think the judgment should be modified by deducting $309.10 and the interest thereon, and as so modified affirmed, with costs.

All concurred.

Judgment modified by deducting therefrom $309.10 and interest thereon, and as so modified affirmed, with costs.  