The opinion of the court was delivered by
Whelpley, J.
This case presents the naked question whether, where a builder has agreed, by a contract under seal, with the owner of a lot of laud “ to build, erect, and complete a building upon the lot for a certain entire ¡trice, but payable in arbitrary installments, fixed without regard to the value of the work done, and the house before its completion falls down, solely by reason of a latent defect in the soil, and not on account of faulty construction, the loss falls upon the builder or the owner of the land.”
The case comes before the court, upon a certificate from the Mercer Circuit, for the advisory opinion of this court.
The covenant of Evernham and Hill was to build, erect, and complete the school-house upon the lot in question for the sum of $2610; the whole price was to be paid for the whole building; the division of that sum into installments, payable at certain stages of the work, was not intended to sever the entirety of the contract, and make the payment of the installments payments for such ¡¡arts of tiie work as might be done when they were payable: this division was made, not to apportion the ¡trice to the different parts of the work, but to suit the wants of the contractor, and aid him in the completion of the work; the consideration of the covenant to complete the building was the whole price, and not the mere balance that might remain after the payment of the installments: it cannot be pretended that the contractor, after payment of a part of the installments, might refuse to go on and complete the building, and yet retain that part of the price he had received. Haslack v. Mayers, 2 Dutcher 284.
No rule of law is more firmly established by a long train of decisions than this, that where a party, by bis own contract, creates a duty or charge upon himself, he is [518]*518bound to make it. good if lie may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract; therefore, if a lessee covenant to repair a house, though it be burned by lightning, or thrown down by enemies, yet he is bound to repair it. Paradine v. Jayne, Alleyn 26; Walton v. Waterhouse, 2 Wm. Saunders 422, a, note 2; Brecknock Company v. Pritchard, 6 Term Rep. 750. This case was an action upon a covenant to build a bridge, and keep it in repair : the defendant pleaded that the bridge was carried away by the act of God, by a great and extraordinary flood, although well built and in good repair. The plea was held bad on demurrer.
To the same effect are Bullock v. Dommit, 6 Term Rep. 650; Phillips v. Stevens, 16 Mass. 238; Dyer 33, a. And .there is no relief in equity. Gales v. Green, 4 Paige 355; Hollzapffell v. Baker, 18 Ves. 115. Chancellor Walworth, in Gales v. Green, in denying relief in equity against a covenant tjo pay rent after the destruction of the demised premises, admits the rule to be against natural law, and not to be found in the law of other countries where the civil law prevails; yet says it is firmly established, notwithstanding the struggles of some of the early English Chancellors against if.
In Beebe v. Johnson, 19 Wend. 500, it was held by Nelson, C. J., delivering the opinion of the court, that the defendant was not excused from performing his covenant to perfect, in England, a patent'granted in this country, so as to insure to the plaintiff the exclusive .right of vending the patented article in the Canadas, because the . power of granting such an exclusive privilege appertained not to the mother country, but to the provinces, and was never granted, except to subjects of Great Britain and residents of the provinces; and the plaintiff and defendant were both American citizens.
The court said, if the covenant be within the range of possibility, however absurd or improbable the idea of ex-[519]*519eculion may be, it will be upheld, as where one covenants it shall rain to-morrow, or that the pope shall be at Westminster on a certain day. To bring the ease within the rule of dispensation, it must appear that the thing to he done cannot by any means be accomplished ; for if it be only improbable, or out. of the power of the obligor, it is not deemed in law impossible. 3 Comyn’s Dig. 93. If a parly enter into an absolute contract, without any qualification or exception, and receives from the party with whom he contracts the consideration of such engagement, he must abide by the contract, and either do the act or pay the damages; his liabilily arises from his own direct mid positive undertaking.
In Lord v. Wheeler, 1 Gray 282, where a workman had agreed to repair a building for an entire “sum, and after she owner liad moved in, it was burned lip before the repairs were completed, it was held, that where one person agrees (o expend labor upon a specific subject, the property of another, as to shoe his horse, or slate his dwelling-house, if the horse dies, or the dwelling-house is destroyed by fire, before the work is done, the performance of the contract becomes impossible, and with the principal perishes the incident. The case was clearly distinguished from the ordinary contract of one to erect a building upon the lands of another, performing the labor and supplying the materials therefor ; where, if before the building is completed or accepted, it is destroyed by fire or other casualty, the loss falls upon the builder, he must rebuild. The thing may be done, and he has contracted to do it. 19 Pick. 275, Nichols v. Adams; Brumby v. Smith, 3 Ala. 123; 2 Parsons on Con. 184; 1 Chit. on Con. 568.
No matter how harsh and apparently unjust in its operation the rule may occasionally be, it cannot be denied that it has its foundations in good sense and inflexible honesty. Ho that agrees to do an act should do it, unless absolufely impossible. He should provide against contingeneie.-. in his contract. Where one of two innocent per[520]*520sons must sustain a loss, the law casts it, upon him who has agreed to sustain it, or rather the law leaves it where the agreement of the parties has put it ; (he law will not insert, for the benefit of one of the parties, by construction, an exception which the parties have not, cither by design or neglect, inserted in (htpr engagement. If a party, for a sufficient consideration, agrees to erect and complete a building upon a particular spot, and find all the materials, and do all the labor, he must erect and complete it, because he has agreed so to do. No matter what the expense, he must provide such a substruction as will sustain the building upon that spot, until it is complete and delivered to the owner. If he agrees to erect a house upon a spot where it cannot be done without driving piles, lie must drive them, because he has agreed to do everything necessary to erect and complete the building. If the, difficulties are apparent on the surface, lie must overcome them. If they are not, but become apparent by excavation or the sinking of the building, the rule is the same. He must overcome them, and erect the building, simply because lie has agreed to do so—to do everything necessary (or that purpose.
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The opinion of the court was delivered by
Whelpley, J.
This case presents the naked question whether, where a builder has agreed, by a contract under seal, with the owner of a lot of laud “ to build, erect, and complete a building upon the lot for a certain entire ¡trice, but payable in arbitrary installments, fixed without regard to the value of the work done, and the house before its completion falls down, solely by reason of a latent defect in the soil, and not on account of faulty construction, the loss falls upon the builder or the owner of the land.”
The case comes before the court, upon a certificate from the Mercer Circuit, for the advisory opinion of this court.
The covenant of Evernham and Hill was to build, erect, and complete the school-house upon the lot in question for the sum of $2610; the whole price was to be paid for the whole building; the division of that sum into installments, payable at certain stages of the work, was not intended to sever the entirety of the contract, and make the payment of the installments payments for such ¡¡arts of tiie work as might be done when they were payable: this division was made, not to apportion the ¡trice to the different parts of the work, but to suit the wants of the contractor, and aid him in the completion of the work; the consideration of the covenant to complete the building was the whole price, and not the mere balance that might remain after the payment of the installments: it cannot be pretended that the contractor, after payment of a part of the installments, might refuse to go on and complete the building, and yet retain that part of the price he had received. Haslack v. Mayers, 2 Dutcher 284.
No rule of law is more firmly established by a long train of decisions than this, that where a party, by bis own contract, creates a duty or charge upon himself, he is [518]*518bound to make it. good if lie may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract; therefore, if a lessee covenant to repair a house, though it be burned by lightning, or thrown down by enemies, yet he is bound to repair it. Paradine v. Jayne, Alleyn 26; Walton v. Waterhouse, 2 Wm. Saunders 422, a, note 2; Brecknock Company v. Pritchard, 6 Term Rep. 750. This case was an action upon a covenant to build a bridge, and keep it in repair : the defendant pleaded that the bridge was carried away by the act of God, by a great and extraordinary flood, although well built and in good repair. The plea was held bad on demurrer.
To the same effect are Bullock v. Dommit, 6 Term Rep. 650; Phillips v. Stevens, 16 Mass. 238; Dyer 33, a. And .there is no relief in equity. Gales v. Green, 4 Paige 355; Hollzapffell v. Baker, 18 Ves. 115. Chancellor Walworth, in Gales v. Green, in denying relief in equity against a covenant tjo pay rent after the destruction of the demised premises, admits the rule to be against natural law, and not to be found in the law of other countries where the civil law prevails; yet says it is firmly established, notwithstanding the struggles of some of the early English Chancellors against if.
In Beebe v. Johnson, 19 Wend. 500, it was held by Nelson, C. J., delivering the opinion of the court, that the defendant was not excused from performing his covenant to perfect, in England, a patent'granted in this country, so as to insure to the plaintiff the exclusive .right of vending the patented article in the Canadas, because the . power of granting such an exclusive privilege appertained not to the mother country, but to the provinces, and was never granted, except to subjects of Great Britain and residents of the provinces; and the plaintiff and defendant were both American citizens.
The court said, if the covenant be within the range of possibility, however absurd or improbable the idea of ex-[519]*519eculion may be, it will be upheld, as where one covenants it shall rain to-morrow, or that the pope shall be at Westminster on a certain day. To bring the ease within the rule of dispensation, it must appear that the thing to he done cannot by any means be accomplished ; for if it be only improbable, or out. of the power of the obligor, it is not deemed in law impossible. 3 Comyn’s Dig. 93. If a parly enter into an absolute contract, without any qualification or exception, and receives from the party with whom he contracts the consideration of such engagement, he must abide by the contract, and either do the act or pay the damages; his liabilily arises from his own direct mid positive undertaking.
In Lord v. Wheeler, 1 Gray 282, where a workman had agreed to repair a building for an entire “sum, and after she owner liad moved in, it was burned lip before the repairs were completed, it was held, that where one person agrees (o expend labor upon a specific subject, the property of another, as to shoe his horse, or slate his dwelling-house, if the horse dies, or the dwelling-house is destroyed by fire, before the work is done, the performance of the contract becomes impossible, and with the principal perishes the incident. The case was clearly distinguished from the ordinary contract of one to erect a building upon the lands of another, performing the labor and supplying the materials therefor ; where, if before the building is completed or accepted, it is destroyed by fire or other casualty, the loss falls upon the builder, he must rebuild. The thing may be done, and he has contracted to do it. 19 Pick. 275, Nichols v. Adams; Brumby v. Smith, 3 Ala. 123; 2 Parsons on Con. 184; 1 Chit. on Con. 568.
No matter how harsh and apparently unjust in its operation the rule may occasionally be, it cannot be denied that it has its foundations in good sense and inflexible honesty. Ho that agrees to do an act should do it, unless absolufely impossible. He should provide against contingeneie.-. in his contract. Where one of two innocent per[520]*520sons must sustain a loss, the law casts it, upon him who has agreed to sustain it, or rather the law leaves it where the agreement of the parties has put it ; (he law will not insert, for the benefit of one of the parties, by construction, an exception which the parties have not, cither by design or neglect, inserted in (htpr engagement. If a party, for a sufficient consideration, agrees to erect and complete a building upon a particular spot, and find all the materials, and do all the labor, he must erect and complete it, because he has agreed so to do. No matter what the expense, he must provide such a substruction as will sustain the building upon that spot, until it is complete and delivered to the owner. If he agrees to erect a house upon a spot where it cannot be done without driving piles, lie must drive them, because he has agreed to do everything necessary to erect and complete the building. If the, difficulties are apparent on the surface, lie must overcome them. If they are not, but become apparent by excavation or the sinking of the building, the rule is the same. He must overcome them, and erect the building, simply because lie has agreed to do so—to do everything necessary (or that purpose.
The oases make no distinction between accidents that could be foreseen when the contract was entered into, and those that could not have been foreseen. Between accidents by the fault of the contractor,, and those where he is without fault, they all rest upon the simple principle—such is the agreement, clear and unqualified, and it must be performed, no matter what the cost, if performance be not absolutely impossible.
The caso of a bailment of an article—locadio operis faeiendi—is not analogous to the case before the court; there, if the article intrusted to the workman is lost without his fault, the owner sustains the loss; not because lie is the owner, but because the contract of bailment is well defined by the law; there is no express agreement to return the aiticlc to the owner in a finished state; [521]*521Ibufc the agreement is an implied agreement, a duty imposed by the law upon a bailee, because the chattel lias been bailed to him, to use his best endeavors to protect the bailment from injury. Parsons states the obligation of the workman to be, to do the work in a proper manner, to employ the materials furnished in the right way. These obligations grow out of the act of bailment; they are its legal consequences, and the law declares them to be so, not because the parties have actually so stipulated, but because they are equitable and fair ; and in the absence of express agreement such will be implied.
The case of Menetone v. Athawes, 3 Barr. 1592, was relied upon by defendants’ counsel to show that when the failure to perform the contract was not the fault of the contractor, he can recover. It was the bailment of a ship, to be repaired while in the shipwrights’ dock, for the use of which the owner paid £5. The vessel was burned when the repairs were nearly completed ; the action was for these repairs. It was like the case of Lord v. Wheeler, before cited. The right to recover was put upon the ground that the plaintiff was not answerable for the accident, which happened without his default, unless there had been a special undertaking; that this liability did not grow out oí’ the law of bailments.
The eases of Trippe v. Armitage, 4 Mees. & Wels. 689; Woods v. Russell, 5 B. & Ald. 942; Clarks v. Spence, 4 Ad. & Ellis 448, have no application • they are all eases arising under the bankrupt laws, involving the question when, under the circumstances of each case, the property in an incomplete chattel in process of manufacture passed out of the bankrupt, so as not to belong to his assignees. They are inapplicable, because the rights of the parties to this suit do not turn upon the question whether the property in an incomplete building is in the owner of the land or the builder, or whether the owner would derive a partial benefit from partial performance, but upon what was the express contract between the parties. The ques-[522]*522lion upon whom the loss is to fall, occasioned by an inevitable accident, is not to be settled by determining what is equitable, what is right, or by the application of the maxim, tes perit domino, or by any nice philosophical disquisitions whether the owner or the builder shall bear the loss. These considerations—this maxim—have their full application in cases where the rights of the parties have not been fixed by contract, but are to be settled by the law upon facts of the case; where resort is to be bad to an implied contract, to a legal obligation raised by the law out of (he natural equities of the case, in the absence of an express agreement.
Neither the destruction of the incomplete building by a sudden tornado, nor its falling by reasou of a latent softness of the soil which rendered the foundation insecure, necessarily prevented the performance of the contract to build, erect, and complete this building for the specified price; it can still be done, for aught that was opened bo the jury as a defence, and overruled by the court.
The whole defence was properly overruled, because it did not show the performance of the covenant impossible, or any lawful excuse for non-performance of the contract.
I am also of opinion that the damage occasioned by the destruction of the building by the gale of wind must be borne by the defendants, for the reasons before given, and that the Circuit Court be advised accordingly.
Cited in Brown v. Fitch, 4 Vr. 422; Mutual Benefit Life Ins. Co. v. Hillyard, 8 Vr. 483; Coles v. Celluloid Manufacturing Co., 10 Vr. 327; Dermott v. Jones, 2 Wall. 8.