Archer v. McDonald , 43 N.Y. Sup. Ct. 194 ( 1885 )

Barnard, P. J. :

The case does not show any facts upon which it is proper to-mitigate the rule that a contract entire in its nature must be fully performed before any claim can be made under it. The plaintiff agreed to store the defendant’s lime at a specified price per barrel, which price was to include cartage to and from the dock on the-warehouse property. The delivery and removal was to be made between the fifteenth of October and the first of the following May, during the time covered by the contract. The lime was received in store, and the storehouse burned down in January with all the lime in it. The lime was ruined as merchantable lime;, and the point taken that the contract was performed because it was still lime has no merit. There are a class of cases which hold that the contract is to be considered as having been made upon the implied agreement that the subject should continue to exist, and that if the subject is destroyed by fire the performance of the contract is excused. Dexter v. Norton (47 N. Y., 62) is one of this class of cases. It can be seen by an examination of this case that the contract was for a sale and when the title was in vendor Accidental burning of the goods was held to excuse performance. This case is not sustained by the like one of Booth v. Spuyten Duyvil Rolling Mill (60 N. Y., 487). A fire in that case was not held to be an excuse for non-performance of a contract to manufacture goods. The court recurs to the old rule that if a contingency is to be provided for which shall excuse performance, it “ should have been provided for in the contract.” Tlie exceptional cases are put upon the construction of the contract. In the present case it cannot be construed so tbafc the defendant shall lose his goods and pay the warehouse bill for storage before the destruction of it by fire. This would not put the parties as they were before the fire. The storage is not earned before the contract is performed by a redeliv■ery of the property during the contract term. Of what use was the ■storage to the defendants short of the redelivery of the property ? If the fire was accidental, and without the plaintiff’s fault, he is ■excused from performance, but he cannot recover storage short of full performance. (N. Y. Cent, and H. R. R. R. Co. v. Standard Oil Co., 87 N. Y., 486.) If the plaintiff did not wish to risk his storage, he could have protected himself by insurance. If he took the risk of fire, he cannot claim storage for burned property which he agreed to keep and redeliver at a date subsequent to the fire.

The judgment should be reversed and a new trial granted, costs to abide event.

The answer of the defendant does not claim the return of the $1,000 paid on account of the storage. If the contract be an entire one, and not performed, the plaintiff cannot keep this payment.

Dykman, J., concurred ; Pratt, J., not sitting.

■Judgment reversed and new trial granted, costs to abide event.