Cook v. McCabe

• Decision Date: 03 November 1881
• Citation: 53 Wis. 250,10 N.W. 507
• Parties: COOK AND OTHERS v. MCCABE.
• Court: Wisconsin Supreme Court

53 Wis. 250

10 N.W. 507

COOK AND OTHERS

v.MCCABE.

Supreme Court of Wisconsin.

Filed November 3, 1881.

Appeal from circuit court, Winnebago county.

This is an action to recover for services rendered and materials furnished by the firm of Cook, Brown & Co., composed of the plaintiffs, for the defendant, John McCabe, in the erection and construction of a dwelling-house under a special written contract entered into between them July 11, 1878. By the terms of the contract, as near as we can gather from the loose and incoherent language employed, Cook, Brown & Co. agreed, in effect, to substantially build the dwelling-house in a good, workmanlike manner, and according to their best skill, and in accordance with the plans and specifications therein contained, of stone, brick, and mason work; the walls to be up and completed and ready for roofing on or before September 1, 1878, and the remainder of the work to be completed on or before October 1, 1878; and they were also to do all the labor in and about the mason work, including making mortar and boarding masons, and putting the lath on, and to do all building and furnish necessary material, except such work and material as were thereby required to be performed and furnished by McCabe, and except that the said Cook, Brown & Co. were not to do any of the joiner work, painting or glazing, nor any of the carpenter work. The said McCabe thereby agreed, in effect, to haul all brick and furnish 24 barrels of lime for said building, and to furnish all good, suitable material for said building on the ground where it was to be built in time, so as not to hinder or delay the mason work, and as fast as needed and required, and to furnish all sand and stone required. For the services to be rendered and the materials to be furnished by Cook, Brown & Co., McCabe thereby agreed, in effect, to pay them $580, in time and manner following, to-wit: $150 upon completion of the work by them, and the remaining $430 within 60 days, without interest; and, if the same is not paid within six months after completion, then to pay thereon 7 per cent. interest; and, if the same is not paid for one year from the completion of the work, then to pay thereon 10 per cent. interest. And, for the true and faithful performance of all the agreements contained in said contract, each party thereby bound themselves in the penal sum of $250, stipulated damages, to be paid by the party failing to fully comply with any of the conditions thereof. The complaint alleged among other things, in effect, that McCabe had refused and neglected to excavate the cellar in time, and had refused and neglected to complete the carpenter work in time; and that Cook, Brown & Co. had been greatly hindered and delayed thereby, but that they had, October 19, 1878, notwithstanding, completed all they were to perform under the contract, except to put the hard finish on the inner walls in the upper story, and to put mortar and hard finish on the walls of the lower story; that on the night of October 20, 1878, without any fault or negligence of the plaintiffs, said dwelling-house was burned and wholly destroyed by fire, by reason whereof they were prevented from completing and finishing the work, but that they had ever since the fire been ready and willing to complete the work so unperformed by reason of the fire; that they had only received $150 of the contract price, and that there was still due them for the materials they had furnished and the part of the work they had performed over and above such payment, $396, with interest at 10 per cent. from October 19, 1878, for which sum they prayed judgment, and a mechanic's lien upon the premises. The answer alleged, in effect, that the materials furnished and labor performed by the plaintiffs did not exceed in value $420, and denied negligence on the part of the defendant, and denied performance of the contract on the part of the plaintiff, and denied all liability, and alleged that if anything was due it had not accrued when the action was commenced, December 15, 1879. The cause was referred by the court to hear, try, and determine, against the objections and exceptions of both parties. November 10, 1880, the referee made his report, finding for the plaintiffs, and assessing their damages at $477.41 and costs, and that they were entitled to a lien therefor. The report was confirmed by the court, and from the judgment entered thereon this appeal is brought.Weisbrod & Harshaw, for respondent.

Finch & Barber, for appellant.

CASSODAY, J.

Neither party offered to furnish materials, and rebuild and restore the portions of the building destroyed by the fire. On the contrary, each insisted upon the other suffering the loss. A large number of cases are cited in support of the proposition that in case of an entire and indivisible contract for the building of a house for a specified sum, to be paid on its completion, and where the edifice is destroyed by fire during the progress of the work, the builder must bear the loss and be to the expense of repairing the damages. The principle underlying the proposition contended for, to a certain extent, is undoubtedly correct.

In Brecknock Co. v. Pritchard, 6 Durnf. & East, 750, the bridge which the contractor agreed to build was broken down by an extraordinary flood, and Kenyon, C. J., said: “If the defendants had chosen to except any loss of any kind it should have been introduced into the contract by way of exception.”

So it was held, on the authority of Lord Chief Justice Hale, that “the lessee of a house, who covenants generally to repair, is bound to rebuild it if it be burned by an accidental fire.” Bullock v. Daurmitt, Id. 650. See Walton v. Waterhouse, 2 Saunders, 420; S. C. 3 Keble, 40; 2 Williams' Notes to Saunders' R. 826; McKenzie v. McLeod, 10 Bing. 385; Phillips v. Stevens, 16 Mass. 238;Dermott v. Jones, 2 Wall. 1;Kramer v. Cook, 7 Gray, 550.

So it has been held that “where a contract is made to build and complete a building and find materials for a certain entire price, payable in instalments as the work progresses, the contract is entire; and if the building, either by fault of the builder or by inevitable accident, is destroyed before completion, the owner may recover back the instalments he has paid.” School Trustees of Trenton v. Bennett, 27 N. J. L. 513.

So it has been held that non-performance by a builder, under such entire contract, was not excused by the destruction of the building by lightning. School-district v. Dauchy, 25 Conn. 530.

So, “where a person contracted to build a house on the land of another, and the house was, before its completion, destroyed by fire, without his fault, it was held that he was not thereby discharged from his obligation to fulfil his contract.” Adams v. Nichols, 19 Pick. 275.

Such cases are distinguishable from one where the contractor agrees to repair another's house already built, and it burns before completion of the repairs. Lord v. Wheeler, 1 Gray, 282;Wells v. Calnau, 107 Mass. 517. But the case at bar is not one of an entire contract to complete an entire building. It is more like Brumby v. Smith, 3 Ala. 123, in which it was held that “where a workman agrees to complete the carpenter's work on a house, and to receive a certain sum on the completion of the work, his employer furnishing the materials, and the house and materials were destroyed by...