Hawkes v. Kehoe

• Decision Date: 01 January 1907
• Citation: Hawkes v. Kehoe, 193 Mass. 419, 79 N.E. 766 (Mass. 1907)
• Parties: HAWKES v. KEHOE et al.
• Court: Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 419

79 N.E. 766

HAWKES v. KEHOE et al.

Supreme Judicial Court of Massachusetts, Norfolk.

January 1, 1907

COUNSEL

Weld A. Rollins, for plaintiff.

Harrison Dunham, for defendants.

OPINION

SHELDON J.

One who has bound himself by a positive and absolute agreement for the performance of something not in itself unlawful is not released from his obligation by the mere fact that in consequence of unforeseen accidents the performance of his contract has become unexpectedly burdensome or even impossible; he must respond in damages for the breach of his agreement. Harvey v. Murray, 136 Mass. 377; Drake v. White, 117 Mass. 10. But it is equally well settled that where from the nature of the contract it appears that the parties must from the beginning have contemplated the continued existence of some particular specified thing as the foundation of what was to be done, then, in the absence of any warranty that the thing shall exist, the contract is to be construed not as a positive contract, but as subject to an implied condition that the parties shall be excused in case before breach performance becomes impossible from the accidental perishing of the thing without the fault of either party. Gray, J., in Wells v. Calnan, 107 Mass. 514 516, 9 Am. Rep. 65, quoting Taylor v. Caldwell, 3 B. & S. 826. The same doctrine has been affirmed in other decisions of this court. Butterfield v. Byron, 153 Mass. 517, 27 N.E. 667, 12 L. R. A. 571, 25 Am. St. Rep. 654 and cases there cited; Young v. Chicopee, 186 Mass 518, 72 N.E. 63; Marvel v. Phillips, 162 Mass. 399, 38 N.E. 1117, 26 L. R. A. 416, 44 Am. St. Rep. 370. See, also, The Tornado, 108 U.S. 342, 351, 352, 2 S.Ct. 746, 27 L.Ed. 747; Dexter v. Norton, 47 N.Y. 62, 7 Am. Rep. 415; Krause v. Board of School Trustees (Ind. App.) 66 N.E. 1010; Dow v. State Bank, 88 Minn. 355, 93 N.W. 121; Vogt v. Hecker, 118 Wis. 306, 95 N.W. 90; Krell v. Henry, [1903] 2 K. B. 740; Hull v. Meux, [1905] 1 K. B. 580. The misfortune which has occurred relases both parties from further performance of the contract and gives no right to either to claim damages from the other. Elliott v. Crutchley, [1903] 2 K. B. 476; s. c. [1904] 1 K. B. 565. We need not stop to consider the different rules which have been laid down in England and in this commonwealth as to the right of either party, in such event, to recover for payments made or services rendered or materials supplied to the other before further performance has become excused. See the cases cited supra.

The plaintiff contends, however, that the rule which we have now stated does not apply to cases like this. He claims that in this commonwealth, where a contract is made for the future conveyance of land with buildings standing thereon, with no provision as to the contingency of the buildings being destroyed by fire before the time appointed for the conveyance, the loss by such a fire falls wholly upon the vendor. Wells v. Calnan, 107 Mass. 514, 9 Am. Rep. 65; Thompson v. Gould, 20 Pick. 134. From this he deduces the conclusion that the purchaser in such a case has a right either to require the vendor to make a conveyance of the land with compensation for the loss of the buildings, as in Phinizy v. Guernsey, 111 Ga. 346, 36 S.E. 796, 50 L. R. A. 680, or to hold the vendor in damages for failing, though by reason of his inability, to convey the estate, including both land and buildings, as he had agreed to do.

We need spend no time upon the numerous cases in England and in this country which the industry of counsel has brought to our notice as to the rights of parties to such agreements upon a total or partial destruction of the buildings by fire. See the cases collected in Am. & Eng. Encyc. of Law (2d Ed.) 712 et seq., and in 1 Ames, Cases on Eq. Jur. 228, note 2. We are of opinion that in this commonwealth, when as in this case, the conveyance is to be made of the whole estate, including both lands and buildings, for an entire price, and the value of the buildings constitutes a large part of the total value of the estate, and the terms of the agreement show that they constituted an important part of the subject-matter of the contract, it is now settled by the decision in Wells v. Calnan, 107 Mass. 514, 9 Am. Rep. 65, that the contract is to be construed as subject to the implied condition that it no longer shall be binding if, before the time for the conveyance to be made the buildings are destroyed by fire. The loss by the fire falls upon the vendor, the owner; and if he has not protected himself by insurance, he can have no reimbursement of this loss; but the contract is no longer binding upon either party. If the purchaser has advanced by part of the price, he can recover it back. Thompson v. Gould, 20 Pick. 134, 138. If the change in the value of the estate is not so great, or if it appears that the buildings did not constitute so material a part of the estate to be conveyed as to result in an annulling of the contract, specific performance may be decreed, with compensation for any breach of agreement, or relief may be given in damages. Kares v. Covell, 180 Mass. 206, 62 N.E. 244, 91 Am. St. Rep. 271; Davis v. Parker, 14 Allen, 94.

It is true, however, that the principle just stated would not be applicable to an agreement which contemplated and provided for the event which has happened--if, that is in such a case as this, the vendor has made himself answerable for the continued existence of the buildings. Allyn v. Allyn, 154 Mass. 570, 28 N.E. 779. The agreement in this case provides that the defendants shall convey to the plaintiff a certain parcel of land 'and the buildings thereon,' and that the premises at the time of delivering the deeds are to be 'in the same condition in which they now are, reasonable use and wear of the buildings thereon alone excepted.' The plaintiff contends that these words were inserted for his protection (Tripp v. Smith, 180 Mass. 122, 126, 61 N.E. 804); that they constitute a part of the contract, and are not to be ignored; and that they are no less applicable when the buildings have been totally consumed than would be the case if they simply had been mutilated by tenants or charred by a small fire. And he claims that the exception of 'reasonable use and wear of the buildings' furnishes an additional reason for holding that injury by inevitable accident is not excepted. Harvey v. Murray, 136 Mass. 377, 378. Accordingly he contends that he has a right to hold the defendants in damages for their failure to convey to him the estate with the buildings in the same condition that they were in at the date of the contract. Combs v. Fisher, 3 Bibb (Ky.) 51; Green v. Kelly, 20 N. J. Law, 544; Goddard v. Bedout, 40 Ind. 114; Morgan v. Hymer (Ky.) 37 S.W. 576. But of these cases Combs v. Fisher simply decides that after the vendor has recovered a judgment at law against the purchaser upon bonds given for the price for the land and buildings, thus affirming the contract, the latter may in equity have his damages from the prior destruction of the buildings set off against such judgment. In Goddard v. Bedout, the defendant had put himself in the position of a lessee, and it is pointed out in Wells v. Calnan, 107 Mass. 514, 517, 518, 9 Am. Rep. 65, that cases in which a lessee is held to pay rent or make repairs notwithstanding the destruction of the buildings...