(9 App. Div. 12)

#### HAYES v. GROSS.

(Supreme Court, Appellate Division, Third Department.

September 14, 1896.)

1. Contracts—Destruction of Subject before Completion.

A contractor for the carpenter work in a building in course of erection is entitled to recover from the owner the value of the materials used and the work done by him where the building was destroyed by fire before the contract was completed.

2. Same—amount of Recovery.

Where a building for which plaintiff had contracted to do the 'carpenter work is destroyed by fire before completion, plaintiff is not entitled to ■ recover the value of materials which he had procured for use in the building, but had not actually used at the time of fire.

*1099The action was to recover for labor performed and materials furnished by the plaintiff in the erection of an 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 co furnish the materials and do that work for $13,675, 75 per cent, of the amount performed from time to time to be paid 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. 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 nighttime, opening it in the mornings. 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. 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. The defendant appeals.

Appeal from judgment oh report of referee.

Action by Dewit A. Hayes against Simeon S. Gross. There was judgment in favor of plaintiff, and defendant appeals. Modified.

Argued before PARKER, P. J., and LANDON, HERRICK, PUTNAM, and MERWIN, JJ.

Edgar A. Spencer, for appellant.

A. D. L. Baker, for 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 he 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 new 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. Clock Co., 97 N. Y. 293. But why shonld 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. An*1100drews 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 defendant’s glass works for $40 per month, $10 of it to be paid monthly. He performed as he agreed from May 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 Mm. Dexter v. Norton, 47 N. Y. 62. But, the vendor being without fault, if the vendee refuses to return the 460 bales which ne has received, and to which he has no title, he ought to pay for tuem, 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 wdth 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 Niblo v. Binsse, 40 N. Y. 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; and, 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, 22 N. E. 259; Lorillard v. Clyde, 142 N. Y. 456, 37 N. E. 489; Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595; Taylor v. Caldwell, 3 Best. & S. 826, 113 E. C. L. 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 Mm *1101the 147 bales of cotton which the fire destroyed. In Goldman v. Eosenberg 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 nonperformance, the action being for an accounting between partners. In Stewart v. Stone the patron of defendant’s cheese factory, to whom the patron had delivered milk to be made into cheese at a stipulated price, sued to recover for the cheese which was destroyed by the destruction by fire of the factory, without fault of the defendant. In Lorillard v. Clyde both parties were interested in a coni oration which the plaintiff was induced to enter, upon the defendant’s guarantying 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 thé first night arrived, the hall was destroyed by fire, without fault of defendant. The plaintiff sought to recover • damages for nonperformance. In all these cases the plaintiff failed to recover, because 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 fire, 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 noncontinuance 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, C. 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 having completed any work of value to the employer.” The report adds that “Com-stock, 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 resnect, 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 perform-*1102mg 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 was in default whether the búilding was destroyed with or without fault on his part. The case shows that the building was destroyed without fault of either owner or contractor. 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 Mblo 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 of 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, 27 N. E. 667; Cook v. McCabe, 53 Wis. 250, 10 N. W. 507; Haynes v. Second Baptist Church (Md.) 57 Am. Rep. 413.

It follows that the judgment should be affirmed, unless the record shows some error ito 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 to the time of the fire. He applied this rule by allowing the contractor the contract rates for his labor and material. This, yve 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, 34 Pac. 677; Add. 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., and 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 Mm with the “Gross Hotel,” *1103the building in question, and with the defendant, are not well taken. These accounts contained in detail the items of materials and labor which the plaintiff furnished upon his contract, and also various cash items connected 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, be affirmed, with costs. All concur.