to be performed, or is left to be implied by the law, such a contract. will generally be held to be severable; and the same rule holds where the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed, although the latter is in its nature single and entire." See note c. to the same section.

In Schwartz v. Saunders, 46 Ill. 17, Saunders made a contract with Schwartz to do carpenter work and furnish the material therefor on a brick building being erected, to be paid for as the work progressed, upon estimates to be furnished by the architect. The building was blown down after an estimate of certain carpenter work and before the contract was completed, and it was held that the contractor, under such circumstances, was justified in abandoning the contract, and entitled to a mechnic's lien for the work done. It was contended there, as here, that the destruction of the building absolved both parties and protected the defendant from any action for the work done, the case of Appleby v. Meyers, supra, being relied upon to support the contention; but it was said of the Appleby case (p. 23): "This case we have examined, and from the statement of it, it would appear that the contract was unlike the one between these parties, which provides, in terms, that 85 per cent. of the work estimated by the architect should be paid as the work progressed, whilst in the case cited no payment was to be made until the work was completed, and as it was not completed the mechanic could not recover for the work he had done." It is true that there are distinguishing features between that case and this, prominent among which is the fact that there the defendant had positively refused to pay the architect's estimate of the work done before the destruction of the building, and afterwards refused to pay the same, insisting that to entitle him to pay therefor he was bound to replace the work destroyed without any compensation, and the plaintiff's right to abandon the work was placed partly upon the refusal to pay and the unjust demand, as well as the destruction of the building. But the case does not hold that where, by the terms of a contract of this character, payment is to be made as the work progresses, the doctrine announced in Appleby v. Meyers has no application.

We think that the Appellate Court properly ruled that plaintiff was entitled to recover under the first count of the declaration, but we are unable to find authority or satisfactory reason upon which to sustain the second. The language "payment to be made as the work progresses," cannot, we think, be considered to mean more than that the $1,250 should be paid as stated—that is, it cannot be construed to mean that payments after the engine was on the foundation should be made as the work progressed, it being expressly stated, "final payment to be due and payable when the elevator is put up in good running order”—that is, when the work was complete. Therefore, on a proper construction of the contract the second proposition should have been refused. There was, however, no error in the judgment of the trial court, because, under the first proposition, which, as we have seen, was properly held, the WOODRUFF'S CASES-13

plaintiff was entitled to recover the $1,250, with 5 per cent. interest thereon from August 1, 1891, to the date of judgment, July 5, 1895, which amounted to considerably more than $1,390 recovered.

The judgment below will be affirmed.

PHILLIPS and CARTWRIGHT, JJ., dissenting.

Judgment affirmed.1

In accord with the doctrine of this case, the court held in Huyett & Smith Co. v. Chicago Edison Co., 167 Ill. 233 (1897), that where plaintiff contracted to construct a ventilating system in a building for $1,350, "payable thirty days after completion and acceptance," plaintiff could not recover for any work done, the building having been destroyed by fire before completion of the work, without fault of either party. Accord, Krause v. Board of Trustees, 70 N. E. 264 (Ind. Sup. Ct., 1904), containing an extended discussion.

In Appleby v. Dods, 8 East (K. B.) 300 (1807), a seaman sued to recover pro rata wages the voyage not having been completed because the vessel was lost at sea. The court said: "The terms of the contract in question are quite clear and reasonable: they relate to a voyage out to Madeira and any of the West India Islands, and to return to London; and there is an express stipulation that no seaman shall demand or be entitled to his wages, or any part thereof, until the arrival of the ship at the above-mentioned port of discharge,' etc.; which must refer to London. And though the reason of this stipulation was, no doubt, to oblige the mariners to return home with the ship, and not to desert her in the West Indies, yet the terms of it are general, and include the present case: and we cannot say, against the express contract of the parties, that the seamen shall recover pro rata, although the ship never did reach her port of discharge named."

HAYES v. GROSS.

9 App. Div. (N. Y.) 12.—1896.1

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 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 defendant's glass works for $40 per month, $10 to be paid monthly, the balance at the end of the year. 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 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.

'Judgment affirmed in 162 N. Y. 610 (1900), on the opinion of Landon, J., below.

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, i 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; 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 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 nonperformance, the action being for an accounting between 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 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 dissovled 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 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 defendant 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 "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 Niblov. 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 his 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 or without fault on his part.1 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 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, 27 N. E. 667;

1This argument was adopted also in Haynes v. Second Baptist Church, 12 Mo. App. 536, 545 (1882), aff'd 88 Mo. 285 (1885).