Haynes, Spencer & Co. v. Second Baptist Church

• Decision Date: 31 October 1885
• Citation: 88 Mo. 285
• Parties: HAYNES, SPENCER & CO. v. THE SECOND BAPTIST CHURCH, Appellant.
• Court: Missouri Supreme Court

88 Mo. 285

HAYNES, SPENCER & CO.

v.THE SECOND BAPTIST CHURCH, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Madill & Ralston for appellant.

(1) Plaintiff having contracted to do an entire work for a specific sum, can recover nothing unless the work be done, or it can be shown that it was the defendant's fault that the work was incomplete. Story on Bailments (9 Ed.) secs. 426 b and 427 a; 1 Wharton on Contracts, ch. 14, secs. 322, 300, 308, 310, 314, 326, 547 and 714 (Ed. 1882); Pollock's Principles of Contracts (1 Am. Ed.) secs. 362 to 365, pp. 411 to 414; 2 Addison on Contracts (1 Am. Ed.) sec. 869, pp. 552, 3 and 4; Appleby v. Myers (1867) 2 L. R. C. P. 650; Navigation Company v. Rennie (1875) 10 L. R. C. P. 271; Brumby v. Smith, 3 Ala. (New Series) 123; Lord v. Wheeler, 1 Gray (Mass.) 282; Wilson v. Knott, 3 Humph. (Tenn.) 473; Richardson v. Shaw, 1 Mo. App. 234; Sinnott v. Mullen, 32 Pa. St. 333; Taylor v. Caldwell, 3 Best and Smith, 826; Sinclair v. Bowles, 9 B. & C. 92. (2) The fact that a slight change was being made in a few of the pews, at the time of the fire, in pursuance of defendant's request, which would have taken one man only two days to make, and was agreed to be paid for by defendant at its extra cost, did not constitute an acceptance of the work then done, or work an abandonment or rescission of the contract. Nor did the same authorize plaintiff to abandon its contract or sue upon a quantum meruit, as upon a general hiring, for the reasons that said change was very slight, was to be paid for at its extra cost and was not completed when the church was burnt. Pepper v. Burland, Peake's Rep. 139, side page 103; Phillippi v. McLean, 5 Mo. App. 586; McCormick v. Conolly, 2 Bay. 401; Bank v. Patterson's Administrator, 7 Cranch, 303; Wright v. Wright, 1 Littell (Ky.) 179; 2 Smith's L. C. (7 Am. Ed.) 50. (3) The granting or acquiescing in an extension of time does not affect the other stipulations in a special contract to build, improve or repair a house. Nibbe v. Brauhn, 24 Ill. 260; Hasbrouck v. Tappen, 15 John. 200; Watkins v. Hodges, 6 H. & J. (Md.) 38. (4) Revised Statutes, section 667, bars plaintiffs' action. Sinnott v. Mullen, 82 Pa. St. 333.

C. F. Joy, C. C. Allen and P. F. Coste for respondents.

(1) An acceptance binds the defendant to pay for what he has received; and where he has assumed control and exercised ownership over work, or where he has allowed it to be affixed to his building, he will be deemed to have accepted it. The acceptance is, of course, an implied acceptance, which, not being a voluntary expression of satisfaction with the work, as done, does not preclude a counter-claim for damages by reason of defects in the work. Yeates v. Ballentine, 56 Mo. 530; 2 Parsons on Contracts, part 2, sec. 5; Thompson v. Allsman, 7 Mo. 531; Lee v. Ashbrook, 14 Mo. 379; Marsch v. Richards, 29 Mo. 105; Lowe v. Sinclair, 27 Mo. ; Lamb v. Brolaski, 38 Mo. 53; Creamer v. Bates, 49 Mo. 545. (2) The defendant being in default in respect to its contract in not having a building in existence wherein plaintiffs could perform and complete their work under the contract, the latter can recover. Rawson v. Clark, 70 Ill. 656; Niblo v. Binsse, 1 Keyes (N. Y.) 476; Cook v. McCabe, 53 Wis. 250; Lord v. Wheeler, 1 Gray, 282; Schwartz v. Saunders, 46 Ill. 18; Garretty v. Brazell, 34 Ia. 100; Cleary v. Sohler, 120 Mass. 210; Whelan v. Creek Co., 27 Hun, 557; Hollis v. Chapman, 36 Tex. 1. (3) When a party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. Tompkins v. Dudley, 25 N. Y. 272; Lewis v. Atlas Ins. Co., 61 Mo. 534; Hammer v. Breidenbach, 31 Mo. 49; Jones v. Dermott, 2 Wall. 1; School Dist. v. Dauchy, 25 Conn. 530; School Trustees v. Bement, 3 Dutcher, 515; Paradine v. Jayne, Aleyn, 26; Harrison v. Railroad, 74 Mo. 371; 2 Parsons on Cont. 35, 673, 523.

BLACK, J.

Plaintiff and defendant, both corporations, entered into a contract by which plaintiff agreed to make, finish and put in place certain fixtures in defendant's building at St. Louis. The work was to be done according to plans to the entire satisfaction of the superintendent and building committee, and to be completed by the first of December, 1878, under a forfeiture of ten dollars for each day's delay. As a full compensation, defendant agreed to pay $4,800 on the completion of the work and acceptance of the same. The building was without fault of either party destroyed by an accidental fire on January 2, 1879. At that time the pews in the gallery and pulpit screen had been attached to the building. The other fixtures, including the pews for lower or audience room, were in the building on the floor and workmen were engaged in putting them in place. The building was in the possession of defendant, had been erected by separate contracts for the different departments of work, and had been by defendant from time to time insured. This is a suit for the value of the work and materials in place and on the floors. The defence is a failure to complete the work according to the contract.

1. Besides the fact that the work was in progress after the date fixed by the contract for its completion, it also appears that by agreement between the parties the backs of a few of the pews were to be altered in some respects at the cost of the defendant. It does not appear whether the time for completing the work was extended by agreement or by acquiescence. Neither the extension of the time for the completion of the work, nor the agreed changes as to those pews, affected the contract in its other provisions. The contract in all other respects remained in full force. Plaintiff cannot simply because of this delay and these alterations abandon the contract and sue for the value of the work. 19 Pick. 275.

2. Some reliance for a recovery is also placed upon an alleged acceptance, and in support of this we are cited to Lord v. Wheeler, 1 Gray, 282. We do not regard the facts of that case analogous to this. There, when the repairs were substantially done, and before the fire, the defendant by his tenant entered into and occupied the house and so used and enjoyed the labor and material, which use and enjoyment it was held, were a severance of the contract, and an acceptance pro tanto. Here there is no pretense that the edifice was even used for any other purpose than that of construction, and that use is contemplated by the contract. The contract also determines by whom and how the acceptance shall be made. The duty to pass upon the work did not arise until completion. There is, therefore, nothing in the case upon which to base any claim upon the ground that the work or any part of it had been accepted.

3. Where a contractor undertakes to build a house upon the land of another, and the house before its completion is destroyed by fire without his fault, he is not thereby relieved from his obligation to fulfill the contract. The duty in such a case is to be distinguished from one imposed by law. The obligation to build is founded upon, and is his own voluntary contract, and its non-performance is not excused by inevitable accident. Adams v. Nichols et al., 19 Pick. 275; Tompkins v. Dudley, 25 N. Y. 272; School Dist. v. Dauchy, 25 Conn. 530; School Trustees v. Bennett, 3 Dutcher, 515; Dermott v. Jones, 2 Wall. 1. In all of these cases the contract was to build a house entire and complete and it is apparent they are quite unlike the contract in question here. There are two lines of authorities which have a direct bearing upon the question in hand. In Addison on Contracts, volume 2, page 554 (Morgan's Ed.), it is said: “Where a man contracts to expend material and labor on buildings belonging to and in the occupation of the employer to be paid for on completion of the whole, and before completion the buildings are destroyed by accidental fire the contractor is excused from completing the work but is not entitled to any compensation for the work already done, which perished without any default of the employer.” The contractor in Appleby v. Meyers, L. R. 2 C. P. 651, agreed to provide and erect certain machinery for a fixed sum and keep the same in repair for two...