cost from the original contractor, and may recover, in addition, damages incurred through the breach of the contract by the latter. Where, on the other hand, the work is completed for less than the balance remaining due of the contract price, there is some doubt whether the original contractor is entitled to be paid the difference. A Maryland man named Hampson once contracted by parol with Lewis, a plasterer, for the plastering of five houses, at $1,500; Hampson to furnish the materials. When the work was partially completed, and Lewis had been paid $650, he abandoned it, alleging that Hampson did not furnish the materials as needed. After notice to Lewis, Hampson employed other mechanics to complete the work, which was finished at a cost of $328. Lewis sued Hampson, to recover the difference between $1,500 and $978, being the sum of $650 and $328, adding some outside items, which brought his whole claim to $850. The evidence whether Hampson had really neglected to supply materials was conflicting, and does not seem to have been much regarded, but it was held that Lewis was entitled to recover $522, which was the difference between what Hampson had actually paid out for the work and the contract price, reserving to Hampson the right to deduct from this any damage that he might have suffered through Lewis' abandonment of the work. On the other hand, a man in California contracted to build certain buildings, for $13,050, to be paid by weekly instalments on account, at the rate of seventy-five per cent of the value of the work done, as shown by the certificate of the architect, the balance of the contract price to be paid when the buildings were completed and accepted, and a proper certificate from the architect was produced. Before completion, the builder refused or neglected to go on with the work as provided in the contract, and the owner took possession, and finished the building himself. The builder, at the time of abandoning the contract, had been paid his weekly instalments of seventy-five per cent of the value of the work done, and $200 Jackson vs. 19 Wis. 400. Hampson vs. Blythe vs. Poultney, 31 Cal. 233. Hammond vs. 2 Mackey, 145. Murphy vs. Buckman, 66 N. Y. 297. Gillen vs. 2 Hilt. 303. or $300 over. The cost of completing the buildings, added to what had been already paid to the builder, amounted to less than the contract price. The representatives of the original contractor sued the owner for the difference. The lower court decided in their favor, but the Supreme Court reversed the decision, saying that the original contractor "had received, "at the time he abandoned the contract, more than was due "him, and by abandonment lost the right which he would have "had to full compensation if he had completed the contract. "If he had sued, at the time he abandoned the contract, for "this balance, he would not have been entitled to recover it, "and he has done nothing since to cause it to become due "him." 66 The United States courts seem to hold the same rule, for, in a case in the District of Columbia, it was held that, "if completion costs less than the balance of the contract price, the contractor cannot recover the difference"; but a New York decision appears to incline to the Maryland view. In Hampson vs. Lewis, there seems to have been some reason to suppose that the owner was partly in fault, while in Blythe vs. Poultney the fault appears to have been all on the side of the contractor; but it would hardly be safe to draw any general inference from this circumstance. One point that is worth noticing is that, where the owner, either directly or by an agent, terminates the original contract, the relation of the architect is changed. It was held in New York, where the owner had terminated the original contract, and was completing the work through other parties, and suit was brought by a sub-contractor, that the certificate of the architect, which was necessary for payment, under the original contract, was no longer needed, as the owner was now his own contractor. IT CHAPTER XXVI. RISK AND RESPONSIBILITY. T often becomes a matter of deep interest to know which of the parties to a building contract is required to assume the responsibility for unforeseen contingencies, in cases where the contract itself is silent upon the subject. Builders, particularly, are surprisingly careless in relation to protecting themselves against unfavorable chances, and a reference to some of the more important decisions ought to have a good effect in putting them on their guard. Among the unexpected occurrences which are likely to result in the ruin of builders, fire is the most important. It is also the most easily guarded against, by means of insurance, but, to save a few dollars in premiums, hundreds of builders expose themselves to certain bankruptcy, if a plastering stove should get overheated, or a spark from a workman's pipe go astray. The general rule of law is that, under an entire contract, including, practically, all building contracts, if the building which forms the subject of the contract is destroyed before completion, the loss must fall on the contractor, who is still bound by his contract, and must rebuild the structure, on the same terms as before, or become liable to the owner for damages for breach of the agreement. One of the leading cases on this point was decided in Connecticut. A man contracted to build a school-house, for a certain sum, and to have it done on a given day. It was Sch. Dist. vs. 25 Conn. 530. Adams vs. Nichols, 19 Pick. 275. Tompkins vs. 25 N. Y. 272. Dermott vs. Sch. Trust. vs. 3 Dutch. 515. Brumby vs. 3 Ala. (N. S.) Partridge vs. Hollis vs. Chapman, 36 Tex. 11. Cleary vs. 120 Mass. 310. Cook vs. 53 Wis. 250. Rawson vs. Clark, 70 I11. 656. Schwartz vs. Saunders, 46 Ill. 21. Eaton vs. Sch. Dist., 23 Wis. 374. Lumber Co. vs. Purdum, 41 O. S. 373. Andrews vs. nearly done, and $1,000 had been paid on account, when, just before the day set for completion, and when there was no doubt that it would be done in time, it was struck by lightning, and burned. The committee requested the contractor to rebuild, and offered to grant a suitable extension of time; but he refused, claiming that he was released from his contract by the "act of God," this being the term used by lawyers to describe occurrences which human prudence could not foresee or provide against. The Supreme Court, however, held that he was not released. The same doctrine was extended to apply to contingencies other than fire, in a decision which deserves to be quoted at some length, on account of the admirable statement of the law contained in it. The firm of Evernham & Hill, builders, contracted to build a school-house, according to certain specifications, annexed to the contract, for the sum of $2,610, of which $2,200 was to be paid in instalments, at the rate of $300 when the first floor of joists was on; $300 when the second floor of joists was on; $1,000 when the building was enclosed; $400 when the plastering was done; $200 when the building was completed, except the rough-casting, and the balance to be paid when the whole was finished. When the building was partially erected, it was blown down by a gale of wind. The contractors rebuilt it, and, when nearly completed, the building again fell down. This time, the contractors, alleging that the second fall was caused by latent defects in the soil, refused to rebuild it. When the building fell the second time, instalments to the amount of $1,600 had been paid to the contractors, and the school trustees sued to recover this amount from the contractors, with a further amount as damages for non-fulfilment of the contract. The suit was brought against Bennett & Carlisle, who had guaranteed the fulfilment of the contract by Evernham & Hill. The plaintiffs simply proved the payments to the contractor, and the non-fulfilment of the contract. The defendants offered to prove that the plaintiffs procured the plan and specifications for the building to be made under the advice of builders or architects employed by them, and purchased the lot of land whereon the building was to be erected, and designated the particular location of the building, "and the precise elevation of said building, and its first floor "; and that the contractors or the defendants were not consulted about either the plan, specifications, lot, location or elevation; that the plaintiffs advertised for proposals to erect the building, and the contractors were the lowest bidders, and "proceeded to erect said building, and did erect it, in strict accordance with said specifications," and that, as each part was completed, the completion of which was a condition precedent to the payment of an instalment of the contract price, such completion was reported to the plaintiffs by the plaintiff's agents; that the work was done in a workmanlike manner, of proper materials, in strict accordance with the plans and specifications, and that the contractors exercised all proper care; but that, when the second tier of joists was on, a violent gale arose, without any of the usual premonitory signs of a storm, and prostrated the building. On rebuilding, the defendants claimed, after the building was enclosed, and nearly plastered, it fell, solely on account of the soil on which it stood having become soft and miry, and unable to support the weight of the building; that, at the time when the foundations were laid, the said soil appeared to be in all respects suitable for the support of such a building; that, "said soil was at that time so hard as to be penetrated with difficulty by the pickaxe," and that its defects were latent; that "said soil became soft and miry in the spring of that year, either by reason of the rising of the springs, or from other natural causes wholly beyond the control of said contractors; and that, by the uniform custom of the trade, the phrase, “with a cellar under the building, to be eight feet deep," is a trade phrase, meaning that the height of the foundation wall is to be of the depth of the cellar, measuring from the bottom of the cellar to the joists of the first floor. Harmony vs. Jayne, Holtzapffel vs. |
