Robb v. Parten , 178 Minn. 188 ( 1928 )

Reargument was granted on the question of whether, where the contract of an independent contractor is entire and is for work on an existing structure, which must continue to exist in order that the work may be performed, and the structure is not under control of the contractor, the contract is on the implied condition of the continued existence of the structure so that, in case the structure is destroyed by fire, without fault of either party, before completion of the contract, the contractor may recover on quantum meruit for the work actually performed. I think this question should be answered in the negative. The English rule is that there can be no such recovery. That rule has been followed in various states. Siegel, Cooper Co. v. Eaton Prince Co. 165 Ill. 550, 46 N.E. 449; Huyett Smith Mfg. Co. v. Chicago Edison Co. 167 Ill. 233, 47 N.E. 384,59 A.S.R. 272; Krause v. Crothersville, 162 Ind. 278, 70 N.E. 264,65 L.R.A. 111, 102 A.S.R. 203, 1 Ann. Cas. 460; Taulbee v. McCarty, 144 Ky. 199, 137 S.W. 1045, 36 L.R.A.(N.S.) 43, Ann. Cas. 1913A, 456, and cases cited. Many of the courts of the United States hold to the contrary.

In this state however the rule was early adopted, without qualification, that one who binds himself by express contract to do something in itself possible must perform his engagement unless prevented by an act of God, the law, or the other party. Stees v. Leonard, 20 Minn. 448 (494). Rule restated in Paine v. Sherwood, 21 Minn. 225, 231; Anderson v. May, 50 Minn. 280,52 N.W. 530, 17 L.R.A. 555, 36 A.S.R. 642; City of Minneapolis v. Republic Creosoting Co. 161 Minn. 178, 190, 201 N.W. 414. While the facts in these cases are not identical with those in the present case, the rule stated seems to apply. The fact that the building in question was in course of construction would not appear to affect the question. I believe that the former affirming opinion of this court in this case was correct, and am therefore obliged to dissent.