Brumby v. Smith

ORMOND, J. As no objection was made to the judgment of the Court overruling the demurrer to the first count, we havo not thought it necessary to examine it. It is certainly true, that when by the terms of a contract, a given duty is to be performed, the performance is a condition precedent, and although performance may be prevented by inevitable accident, a pro rata compensation cannot be recovered for the services actually performed. Of this principle, the case of Cutter v. Powell, 6 Term Rep. 320, furnishes a full illustration. [125] The facts were, that Cutter shipped on board a vessel, as second mate, and received from the master the following obligation: “I promise to pay Mr T. Cutter the sum of thirty guineas, provided he proceeds, continues and does his duty as second mate in the ship Governor Parry, from hence to Liverpool.” During the voyage, and before the ship arrived at Liverpool, Cutter died, and the action was brought by his administrator, to recover the value of the services actually rendered. The Court held, he could not recover on the ground, that performance was by the terms of the contract, a condition precedent to a recovery, and that it was no answer to the objection that he was prevented by inevitable accident from performing his contract. So, if a workman undertakes to build a hoyse, to be paid on its completion, he cannot demand payment until he has complied with his contract, by building the house, and if it should be destroyed by inevitable accident, it will be his loss. In this case, it was contended by the counsel for the defendant in error, that this was distinguishable from the class of cases we have been considering; that it was the hire of labor •and services, as the employer was to furnish the materials, and that, “if while the work is doing, the thing perishes by internal defect, by accident or superior force, without any default of the workman, the latter is entitled to compensation to the extent of the labor actually performed.” Judge Story, in his work on Bailment, at page 278, admits that the rule is as above stated, by the civil law, where there is no contract postponing the time of payment to the completion of the work, and such he intimates would be the rule at common law; that such is the rule of law, is shown by the case of Menetone v. Athawes, 3 Burrows’ Rep. 1592, which was an action by a ship-wright, for work and labor done, and materials found, in repairing the defendant’s ship. The facts were, the ship was in the dock of the plaintiffs, to be repaired, and when only three hours work were wanting to complete the repairs, a fire happened in an adjacent brew house, was communicated to the dock, and the ship was destroyed. The dock belonged to the ship-wright, and the owner of the ship had agreed to pay £5 for the use of it. The plaintiff obtained judgment. In that case, it is to be observed, there was no contract to per [126] form the work at a specific price, and the recovery was had ■on the implied promise to pay the value of the work and labor, and materials furnished. In this case, the defendant in error agreed to complete the carpenter’s work on a house of the plain-tiffin error; the materials to be furnished by the plaintiffin error, in consideration of which, he agreed to pay the 'defendant in error four hundred and thirty-seven dollars, “ to be paid' when the work was completed’ A few days before the completion of the work, the house was consumed by fire, whilst the plaintiff in error was in possession. Here there was an entire contract, and although it was labor to be performed on materials furnished by the employer, yet by its express terms, the labor was not to be paid for until the work was completed; and if this is rendered impossible, without the act of the employer, there can be no recovery for the work actually done. Mr. Justice Story, after examining this question at some length, comes to the same conclusion. “It would seem (he says) that by the common law, in such a case, independent of any usage of trade, the workman would not be entitled to any compensation; and that the rule would be, that the thing should perish to the employer, and the work to the mechanic; for the contract by the job would be treated as an entirety, and should be completed before the stipulated compensation would be due.” Story on Bailment, 278; sec. 426, b. 2d edition. From these considerations, it appears that the Judge erred in his charge to the jury, and the judgment is, therefore, reversed, and the cause remanded.