Majority
p. 54William Niblo vs. John Binsse, executor, and Louisa La Farge, executrix, &c. of John La Farge, deceased.
Headnote
Where a plumber agreed to do the plumbing work to a house then about to be erected, and to furnish the materials, for a gross sum, to be paid in installments, the last two installments to be paid as follows : $1500 when all the work should be completed, and the balance, $1000, when the work should be tested and found to be sufficient, according to the provisions of the contract; the payments to be made upon the certificate of a certain architect that they were due according to the contract; and a substantial part of the work to be done was not yet finished, when an accidental five occurred, and destroyed the building; the work not having been tested, and no certificate obtained from the architect; Held that the plumber could recover no part of the last two installments.No excuse for the non-performance of a contract is recognized by the law, except where performance has been rendered impossible by the act of God, by the act of the law, or by the act of the other party.
Accidental fire is not deemed so far the “ act of God” as to be received as a legal excuse for the non-performance of a contract.
In legal acceptation the act of God is such an act as could not happen by the intervention of man. Every other kind of impossibility the law requires of every man who contracts to perform any work for another, to provide against in his contract.
Where the law creates a duty or charge, and the party is disabled from performing it, without any default in himself and he has no remedy over, then the law will excuse him; but where the party, Try Ms oton contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident or delay by inevitable necessity j because he might have provided against it by contract. And the law will no more rectify or supplement, than it will create, contracts ; except in cases of fraud or mistake.
APPEAL from a judgment rendered upon the report of a referee. By written agreement, dated the 14th of April, 1853, John La Farge agreed with Anthony E. Hitchings, that the latter should furnish all the materials and put into the La Farge Hotel and Metropolitan Hall then being built in Broadway near Amity street, the steam boilers, and steam engine pumps, hot water tanks, and all apparatus and other necessary fixtures and appurtenances for warming the rooms, halls, entrances, drying rooms, water,'&c. of the La Farge Hotel and Metropolitan Hall. The contract price was
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$10,000, and was to be paid by installments as the work progressed. The fifth installment ($1500) to be paid “ when the coils are in the concert rooni, and the ornamental screens are fixed in the hotel and concert rooms, and all the work completed.” The sixth and last installment, $1000, was to be paid “ when the work is tested, and found to be sufficient according to the provisions of this contract.” The contract also provided that “the said payments (contract moneys) shall be made upon the certificate of the said architect, that they are due according to the provisions of this agreement.” Under this contract Mr. Hitchings proceeded with his work, and was, from time to time, paid various sums upon the contract, amounting in all, as found by the referee, to $7500, but in no instance was any one of such payments at any particular time equal to any given installment; at no time was an architect’s certificate obtained or required. The last two payments were $1000 on the 24th of October, and $1500 on the 15th of December, 1853. On the 7th day of January, 1854, and when Hitchings’ work had been very nearly completed the La Farge Hotel, including the entire building-, was totally destroyed by fire, and a large part of this work perished with it. All of the material which Hitchings had put into the building, including the steam engines and pipe, which remained after the fire, Mr. La Farge kept and retained as his own property, and for his own use. He used the steam boilers afterward for heating another hotel, built upon the same spot; and he sold to Mr. Hitchings the debris of the pipe for $1000. The referee found that “ the work remaining undone would have cost but little beyond the sum of $1000while the testimony shows, as the plaintiff insists, that the work remaining undone would not have cost $221. A part of the building in which Hitchings’ work was done was connected and under the same roof with the hotel, and was known as Triplet’ or Metropolitan Hall. After Hitchings had put the warming apparatus into this “ Hall” the “ Hall” was used for several weeks by La Farge and his ten
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ant for public purposes, such as Jenny Lind’s concerts ; and on such occasions was warmed by the use of Hitchings’ warming apparatus. A jeweler’s store was also warmed by it, and the occupant paid La Farge or his lessee for it. The apparatus of Hitchings was used to test the plumbing work in the building, and also, for some weeks before the fire, to dry the walls and rooms of the hotel. This suit was brought to recover a balance claimed to be due under the above facts. The plaintiff claimed that he was entitled to recover the difference between the contract price, $10,000, and the amount paid, less such sum as it would have cost, at the time of the fire, to fully complete the work. ■ Hitchings assigned this demand with others to his creditor, the plaintiff, who brought this suit. The referee, the Hon. Wm. Mitchell, reported in favor of the defendants,[1]
From the judgment entered by the defendants upon that report the plaintiff appealed.
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E. P. Cowles, for the appellant.
T. J. Glover, for the respondents.
Was the assignor of the plaintiff excused, under the circumstances of this case, from completing the work which he contracted to perform ?
From the earliest period of our legal history, no excuse for
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non-performance has heen recognized, except where the performance has been rendered impossible by the act of God, by the act of the law, or by the act of the other party; or, in the language of Coke, (Coke Litt. 206,) “in all cases where a • condition of a bond, recognizance, &c. is possible at the time of making the condition and before'the same can be performed, the condition becomes impossible by the act of God,
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or of the law, or of the obligee, &c. there the obligation is saved.”
If the assignor of the plaintiff could have been excused at all for the non-performance of the contract in this case, the excuse must have been on the ground that the performance became impossible by the act of God.
The accident of fire has, indeed, rendered it impossible
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for him to complete the contract. But, is accidental fire so deemed “ the act of Grod,” as to he received as a legal excuse for the non-performance of a contract P The latest case in our courts, hearing upon this subject, is that of Tompkins v. Dudley, ( 25 N. Y. Rep. 272 .) In that case, the court of appeals decided, where one has agreed to build a house on tho land of another, and has substantially performed his contract,
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but, before be has completely finished the house or delivered it, it is destroyed by accidental fire, he is liable to an action for damages for non-performance. In other words, accidental fire is not deemed in legal acceptation “ the act of God.” In that case, undoubtedly, nothing rendered it impossiblé for the contractor to complete the performance of his contract; noth
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ing prevented him from rebuilding ; he could recommence his work, and, without aid or interference from others, and without being obliged to depend necessarily upon any co-operation from any source, he could prosecute the work until the house should be rebuilt. In the case.before us, however, the assignor of the plaintiff could not recommence plumbing work in a house which was destroyed by fire. Unquestionably, the fire rendered it impossible for him to do this ; that is, it was impossible for him to do it on the thing stated in the contract. That thing no longer existed; and so far it is evident that a material difference obtains between the circumstances of the present case and that to which I have referred. But, the essential ground of the rule allowing any excuse for the nonperformance of contracts, is not the simple impossibility of the performance, but whether the impossibility was caused by “ the act of God” — “ the act of God” signifying any inevitable accident occurring without the intervention of man ; being considered to mean, in the law, something in opposition to the act of man, as storms, tempests, and lightning. “Everything, indeed, as Lord Mansfield says, in Forward v. Pittard, (1 T. R. 31,) is the act of God that happens by his permission; every thing, by his knowledge.” But, in legal acceptation, the act of God is such an act as could not happen by the intervention of man. Every other kind of impossibility, .the law requires of every man who contracts to perform any work for another, to provide against in his contract. Where, indeed, the law creates a duty or charge, and the party is disabled from performing it, without any default in himself, and has no remedy over, then the law will excuse him; but, where the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident or delay by inevitable necessity, because he might have provided against it by contract, and the law will no more rectify or supplement, than it will create, contracts, except in cases of fraud or mistake. In Harmony v. Bingham, (2 Kernan, 108,) the court, after quoting the authorities in
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support of this principle, adds that “ this principle has heen uniformly followed, and that, too, even in cases in Avhich its application has been considered by the court as attended with great hardship.” The only exception which has ever been acknowledged is where a party has contracted to do a thing, which the act of God, in the sense which I have mentioned, has rendered it impossible for him to do. This is the substance of what the courts say in all the cases, insisting, as I have said, that the party should provide against all other contingencies in his contract.
The English cases, to which the counsel for the plaintiff refers, are not in point, and if they were, and contravened the principle which I have traced, they would not be law. I take the same view of them which the referee takes in his opinion. In Menetone v. Athawes, (3 Burr. 1592,) it does not appear that there was a contract to complete the repairs on the ship; it must be inferred that the shipwright was employed from day to day to perform the work. The dock, indeed, in which the ship was undergoing the repairs, belonged to the shipwright, but the owner of the ship had agreed to pay £.5 for the use of it; so that, as Mr. Justice Wilmot remarked, “ it was like a horse that a farrier was curing, being burned in the owner’s own stable.”
Mothing appears in that case inconsistent with the idea that the owner of the ship could have discharged the plaintiff on any day during the progress of the work, and could have employed any other shipwright to complete it. He in fact for the time being owned the dock.
In Lord v. Wheeler, (1 Gray, [Mass.] 282,) to which the counsel for the plaintiff so confidently refers, the court expressly state “ the precise ground on which the plaintiff can recover in this case is, that when the repairs upon the house were substantially done, and before the fire, the defendant by his tenant entered into and occupied it, and so used and enjoyed the labor and material of the plaintiff that such use and enjoyment were a severance of the contract and an ac
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ceptance pro tanto by the defendant.” Where there is an acceptance of so much of the work as is completed, it is undoubtedly reasonable to consider this fact a modification or severance of the contract, so as to render the acceptor liable for the payment of what has been accepted and enjoyed, and the relinquishment of his right to insist upon the entire completion of it before he should pay for it; although I doubt whether the course of decisions in this state would warrant any of our courts in following this decision. But there is no evidence in the present case sufficient to show that La Farge ever so completely availed himself of the work as to amount to an acceptance of it. The facts stated by the referee do not constitute an acceptance of the work, or a severance of the contract, or show a. waiver of the right to demand a full compliance with its requirements.
[New York Generar Term,
February 1, 1864.
The judgment should be affirmed, with costs.
Leonard, Olorice and Sutherland, Justices.]