Mr. Justice Waterman
delivered the opinion of the Court.
The question in this ease is, upon whom, of two equally innocent parties shall a loss by fire fall.
This must be determined by an ascertainment of whose property it was that the fire destroyed. Where property is without fault destroyed by fire, the loss falls upon the owner. Wells v. Calnan, 107 Mass. 514.
Neither of the parties to the contract under consideration owned the building into which the ventilating apparatus was to be put. Appellant had merely a contract to place a certain plant in the building, and sub-let to appellee the making and installing of ventilating machinery.
The articles placed in the building by appellee were such as could easily have been removed therefrom; indeed, the contract recognizes that such removal was feasible if not probable. It containing the following : “We agree that if at the time of the expiration of the amusement season, which is not to be later than December 1, 1893, we will, if you desire us to remove the ventilating system from the building, pay you for the same, the sum of $400.”
The contract was executory; it was not a sale of specific goods, and therefore no title passed at the making of the agreement. Benjamin on Sales, Sec. 308, p. 248 of 6th Am. Ed.
If, upon the day of the fire, appellee had resolved and proceeded to take out all or any portion of the material before then by it placed in the building, and to devote such goods to other uses, it would have ' had a right to do so; for the material was yet its property.
It had not agreed to put in any specific fan, but a ventilating system.
It was to be paid $1,350 thirty days after the completion and installation of a ventilating system in accordance with certain plans and specifications.
Such being the case, its property in this building was destroyed by fire.
Upon the trial of this cause, at the instance of the plaintiff, the court held as a proposition of law, the following:
“ The court hold as a proposition of law upon the agreed facts in this case, that the destruction of the building upon which the contract entered into between the parties was to operate, in effect annulled the contract; it excused the plaintiff from performance of it, and it excused the defendant from paying the contract price, and left the parties in exactly the same condition as though no contract had been made, and therefore that the plaintiff is entitled to recover under the common counts for the value of materials furnished and labor performed.”
The court refused to hold as law in the decision of the case the following" written propositions of law, or either of them, submitted by counsel for defendant:
I. “ The court holds, as a matter of law, that under the agreed statement of facts in this case, the contract of April 4,1893, between the plaintiff and defendant, under which the plaintiff furnished the goods and did the work for which it seeks to recover, was a contract for the sale of chattels, and that at the time of the fire the title to said chattels remained in, and the loss thereof must fall upon, the plaintiff, and therefore the plaintiff can not recover.
II. “ The court holds, as a matter of law, that under the agreed facts in this case, there was no implied obligation on the part of the defendant that the building in which the ventilating system was to be installed should remain in. existence until the expiration of the time within which the plaintiff was to perform his contract, and that as the facts are that the building was not in the control of defendant^ that the fire was an inevitable casualty which occurred without its neglect or default, or through its agency, that no benefit accrued to the defendant for the goods furnished or the work done under the contract, and that at the time of the fire the plaintiff’s contract had not been substantially performed, or the work accepted, the plaintiff can not recover in this action.
III. “ The court holds, as a matter of law, that under the agreed facts in this case, the plaintiff can not recover.
IV. “ The court holds, as a matter of law, that as the contract in this case was not performed on the part of the plaintiff, or its performance prevented by or through the act, neglect, default or agency of the defendant, the plaintiff can not recover on the qucmtum meruit.”
Where, from the nature of a contract, the parties have contemplated the continuing existence of some particular specified thing as the foundation of what was to be done, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed 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. Wells v. Calnan, 107 Mass. 554-517; Taylor v. Caldwell, 3 Best & Smith, 826.
Such was a rule of the civil law. Pothier Traites des Obligations, partie 3, Chap. 6, Art. 3, Sec. 668:
“ Si Stichus certo die dari promissus, ante diem moriatur; non tenetur promissor.”
It being undertaken that by a certain da,y, Stichus (a slave) shall be delivered, if before the day he dies, the obligation is at an end. Digest lib. 45, tit. 1.
Such is the rule of the common law in respect to promises to marry.
If the promisor dies before the time at which the nuptials were to be celebrated, the executors of the deceased are not liable. Hyde v. The Dean of Windsor, Cro. Eliz. 552, 553.
And such also is the rule with respect to an author who undertakes to compose a work, and dies before completing it; his executors are discharged from the contract, for it was personal in its nature. 2 Williams on Exctrs. 560, 5th Ed.; Hall v. Wright, E. B. & E. 746-749.
Ordinarily, he who undertakes to do a thing, not manifestly impossible, must perform, whatever accidents may happen, for it was his folly to have so promised. 1 Roll. Abr. 450, Condition G; Walton v. Waterhouse, 2 Williams’ Saunders, 421, 5th Ed.; Hall v. Wright, E. B. & E. 746; School Trustees v. Bennett et al., 3 Dutcher (N. J.) 513; Hawley v. Florsheim, 44 Ill. App. 320-323.
In cases where the performance is personal, and therefore, the person dying, the contract is at an end, the party who has partly performed can not recover upon a quantum meruit an amount which never became due. Lee v. Griffin, 1 Best & Smith, 272; Hyde v. The Dean of Windsor, Cro. Eliz. 552, 553; Hall v. Wright, E. B. & E. 746-749.
Where the continued existence of the thing upon which' work is to be done is presupposed by the contract, one contracting to make certain additions thereto is not entitled to be paid the value of the work already performed when the thing whose existence is essential to performance is, without fault, destroyed.
The contract, if thus untimely ended, without fault of any one, gives to the parties thereto, as against each other, neither equities nor rights.
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Mr. Justice Waterman
delivered the opinion of the Court.
The question in this ease is, upon whom, of two equally innocent parties shall a loss by fire fall.
This must be determined by an ascertainment of whose property it was that the fire destroyed. Where property is without fault destroyed by fire, the loss falls upon the owner. Wells v. Calnan, 107 Mass. 514.
Neither of the parties to the contract under consideration owned the building into which the ventilating apparatus was to be put. Appellant had merely a contract to place a certain plant in the building, and sub-let to appellee the making and installing of ventilating machinery.
The articles placed in the building by appellee were such as could easily have been removed therefrom; indeed, the contract recognizes that such removal was feasible if not probable. It containing the following : “We agree that if at the time of the expiration of the amusement season, which is not to be later than December 1, 1893, we will, if you desire us to remove the ventilating system from the building, pay you for the same, the sum of $400.”
The contract was executory; it was not a sale of specific goods, and therefore no title passed at the making of the agreement. Benjamin on Sales, Sec. 308, p. 248 of 6th Am. Ed.
If, upon the day of the fire, appellee had resolved and proceeded to take out all or any portion of the material before then by it placed in the building, and to devote such goods to other uses, it would have ' had a right to do so; for the material was yet its property.
It had not agreed to put in any specific fan, but a ventilating system.
It was to be paid $1,350 thirty days after the completion and installation of a ventilating system in accordance with certain plans and specifications.
Such being the case, its property in this building was destroyed by fire.
Upon the trial of this cause, at the instance of the plaintiff, the court held as a proposition of law, the following:
“ The court hold as a proposition of law upon the agreed facts in this case, that the destruction of the building upon which the contract entered into between the parties was to operate, in effect annulled the contract; it excused the plaintiff from performance of it, and it excused the defendant from paying the contract price, and left the parties in exactly the same condition as though no contract had been made, and therefore that the plaintiff is entitled to recover under the common counts for the value of materials furnished and labor performed.”
The court refused to hold as law in the decision of the case the following" written propositions of law, or either of them, submitted by counsel for defendant:
I. “ The court holds, as a matter of law, that under the agreed statement of facts in this case, the contract of April 4,1893, between the plaintiff and defendant, under which the plaintiff furnished the goods and did the work for which it seeks to recover, was a contract for the sale of chattels, and that at the time of the fire the title to said chattels remained in, and the loss thereof must fall upon, the plaintiff, and therefore the plaintiff can not recover.
II. “ The court holds, as a matter of law, that under the agreed facts in this case, there was no implied obligation on the part of the defendant that the building in which the ventilating system was to be installed should remain in. existence until the expiration of the time within which the plaintiff was to perform his contract, and that as the facts are that the building was not in the control of defendant^ that the fire was an inevitable casualty which occurred without its neglect or default, or through its agency, that no benefit accrued to the defendant for the goods furnished or the work done under the contract, and that at the time of the fire the plaintiff’s contract had not been substantially performed, or the work accepted, the plaintiff can not recover in this action.
III. “ The court holds, as a matter of law, that under the agreed facts in this case, the plaintiff can not recover.
IV. “ The court holds, as a matter of law, that as the contract in this case was not performed on the part of the plaintiff, or its performance prevented by or through the act, neglect, default or agency of the defendant, the plaintiff can not recover on the qucmtum meruit.”
Where, from the nature of a contract, the parties have contemplated the continuing existence of some particular specified thing as the foundation of what was to be done, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed 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. Wells v. Calnan, 107 Mass. 554-517; Taylor v. Caldwell, 3 Best & Smith, 826.
Such was a rule of the civil law. Pothier Traites des Obligations, partie 3, Chap. 6, Art. 3, Sec. 668:
“ Si Stichus certo die dari promissus, ante diem moriatur; non tenetur promissor.”
It being undertaken that by a certain da,y, Stichus (a slave) shall be delivered, if before the day he dies, the obligation is at an end. Digest lib. 45, tit. 1.
Such is the rule of the common law in respect to promises to marry.
If the promisor dies before the time at which the nuptials were to be celebrated, the executors of the deceased are not liable. Hyde v. The Dean of Windsor, Cro. Eliz. 552, 553.
And such also is the rule with respect to an author who undertakes to compose a work, and dies before completing it; his executors are discharged from the contract, for it was personal in its nature. 2 Williams on Exctrs. 560, 5th Ed.; Hall v. Wright, E. B. & E. 746-749.
Ordinarily, he who undertakes to do a thing, not manifestly impossible, must perform, whatever accidents may happen, for it was his folly to have so promised. 1 Roll. Abr. 450, Condition G; Walton v. Waterhouse, 2 Williams’ Saunders, 421, 5th Ed.; Hall v. Wright, E. B. & E. 746; School Trustees v. Bennett et al., 3 Dutcher (N. J.) 513; Hawley v. Florsheim, 44 Ill. App. 320-323.
In cases where the performance is personal, and therefore, the person dying, the contract is at an end, the party who has partly performed can not recover upon a quantum meruit an amount which never became due. Lee v. Griffin, 1 Best & Smith, 272; Hyde v. The Dean of Windsor, Cro. Eliz. 552, 553; Hall v. Wright, E. B. & E. 746-749.
Where the continued existence of the thing upon which' work is to be done is presupposed by the contract, one contracting to make certain additions thereto is not entitled to be paid the value of the work already performed when the thing whose existence is essential to performance is, without fault, destroyed.
The contract, if thus untimely ended, without fault of any one, gives to the parties thereto, as against each other, neither equities nor rights. "Neither being at fault, the loss falls on him whose hopes have been dashed or property destroyed.
The woman engaged to marry a prince can not, when he dies before default, recover damages of his executors. The man who has undertaken to place in a house a ventilating system capable of removal, and which, when destroyed by fire, was his property, loses what he had already done.
- In contracts in which performance depends on the continued existence of a given person or thing, a condition is implied that performance is excused by the perishing of such person or thing. Taylor v. Caldwell, 3 Best & Smith, 826, 839, 840; Sparrow v. Songate, W. Jones, 29; Williams v. Lloyd, W. Jones, 179; Coggs v. Bernard, 1 Smith’s Leading Cases, 171, 5th Ed.; Appleby v. Myers, 3 C. P. Cases, 651-660; Howell v. Coupland, 9 Q. B. 462; Howell v. Coupland, 1 Q. B. D. 258; Cook et al. v. McCabe, 53 Wis. 250-258.
Where a contract amounts to a bargain and sale of a specific chattel, to be delivered by the vendor at a future day, if the chattel, without the fault of the vendor, perish in the interval, the purchaser must pay the price, while the vendor is excused from, a performance which has thus become impossible. The loss falls on him whose property was, without fault of any one, destroyed. Taylor v. Caldwell, 3 B. & S. 837.
It has been held that a party contracting to repair a building, if the work put from time to time thereon is of such a nature that it, as done, becomes a part of the structure, and thus the property of the owner, if the building without fault be destroyed, the entire loss falls upon such owner, and he must pay the value of the repairs already made. Cleary v. Sohier, 120 Mass. 210.
So too, if the contractor for work upon a building at the time of its destruction was entitled to be paid certain amounts, the loss falls upon the owner, who must pay the sum already by him owing.
Of the cases to which attention is called by appellee, in Schwartz v. Saunders, 46 Ill. 18, the contractor, under the terms of the contract to do merely the carpenter work of a building being erected, had earned, and there was due to him, the amount for which he was allowed a lien.
In Clark v. Busse, 82 Ill. 515, the contractor recovered because when the building was destroyed his work was substantially done.
In Rawson v. Clark, 70 Ill. 656, but for the conduct of the owner the contractor would have completed his work before the building was burned.
In Cleary v. Sohier, 120 Mass. 210, the material furnished, lath and plaster, became at once, when put into place upon the building, a part of it, real property, belonging to the owner of the structure.
The case of Cook et al. v. McCabe, 53 Wis. 250, recognizes the principle herein set forth, that the perishing of a thing whose existence is essential to performance, excuses compliance, and that the loss falls upon him whose property is destroyed, “ especially,” as is there said, “ where he has the same insured at the time for his benefit.”
In Niblo v. Binsse, 1 Keys, 476, the owner "of a building, who had retained possession and control of the same, was made to pay for work done by contract thereon; it being apparent that the owner, who had, as provided by the contract, paid $7,500 for work already done, was, when the fire occurred, the owner of the work which had then been ■ performed.
Siegel, Cooper & Co. v. Eaton & Prince Co., 60 Ill. App. 639, we are now satisfied was wrongly decided as to $150 not due at the time the premises were destroyed; we adhere to the rule under which the amount due, $1,250, was there allowed.
In such a case as the present, where nothing was due, and the premises are destroyed without fault upon either side, it is an equal misfortune, and neither can recover from the other. Appleby v. Myers, L. R., 2 C. P. Cases, 651, 659; The Pike Electric Co. v. The Richardson Drug Co., 42 Mo. App. 272; Fairbanks v. The Richardson Drug Co., 42 Mo. App. 262; Bacon v. Cobb, 45 Ill. 47; Howell v. Coupland, L. R., 9 Q. B. 462.
We are unable to see, admitting that the contract to install this ventilating plant was terminated by the fire, upon what principle there arose therefrom an obligation upon the part of appellant to pay the value of work previously done. Ho one was at fault; all had been transacted in perfect good faith. The property when destroyed was clearly that of appellee. Why, then, should appellant be compelled to pay for what he never owned or owed for, and from which he had derived no benefit %
It is urged that appellant impliedly contracted that the building in which the ventilating apparatus was to be placed, should continue to exist, and be in a fit condition for the reception of such apparatus.
Appellant did not own or have control of such building; and why an implication should be made that appellant so contracted and that appellee did not, is not clear. The implied contract in this regard was that appellant could and would give to appellee reasonable access and opportunity to place the ventilating apparatus in said building; that appellant would not in any way or manner hinder or delay appellee in doing the work, and that the building, the continued existence of which was necessary to the doing the work, should neither directly or by negligence of appellant be rendered unfit for the purposes for which appellee was to use it. 2 C. P. Cases, 651, 659, 661; Taylor v. Caldwell, 3 Best & Smith, 826, 832, 839; Howell v. Coupland, 9 Q. Bench, 462, 465, 467.
The judgment of the Circuit Court is reversed. A judgment will be here entered for the defendant.