Argument for the builder. here, the plaintiff had abandoned his work, leaving it unfinished? how far "acceptance," when such acceptance consisted only in a party's treating as her own a house built on her ground,-waives non-fulfilment, there being no bad faith in the matter? and some questions of a kindred kind. The most important question in the case, however, was the refusal of the court to charge, as requested, in regard to the recoupment:" and the correctness of that refusal rested upon the effect of Jones's covenant to deliver, fit for use and occupation, in connection with the latent defect of soil upon which the foundation was built. แ Messrs. Carlisle and Davidge for the builder: In all cases of locatio operis faciendi, where a workman undertakes to incorporate his work and materials with the property of another, and loss is sustained in consequence of some inherent defect in the property, the loss falls upon the employer. The maxim of res perit domino applies. Pothier, according to Story,* thus declares the law of France. It is also Scotch law. By it, if the workman is employed in working the materials, or adding his labor to the property of the employer, the risk belongs to the owner of the thing with which the labor is incorporated.† The employer, by the code of France, is the guarantor of the thing upon which the work and materials of the workman are to be expended: the code of Louisiana adopts the same rule: and the common law is the same. "If the loss in bad execution," says Kent,‡ "is not properly attributable to the fault or unskilfulness of the undertaker, or those employed by him, but arises from the inherent defect of the thing itself; in such a case the loss is to be borne by the employer, unless there is some agreement by which the risk is taken by the undertaker." Undoubtedly the plaintiff might have assumed the extraordinary responsibility alleged; but, unless it be clearly shown that he did so, the presumption is that he contracted * Bailments, 2 426. † 1 Bell, 156, 5th ed. ‡ 2 Commentaries, ? 40. Argument for the owner of the soil. for no more than the sort and degree of skill and diligence. belonging to his trade. His covenant is not the stipulation of an insurer of anything, but is a stipulation to give his own skill, fidelity, and diligence in the prosecution of work undertaken in pursuance of prescribed specifications and plans. Miss Dermott purchased, by the contract, the skill and diligence of Jones, in supplying the work and materials stipu lated, and also his judgment, so far as involved in the work and materials. But she never bought his judgment, as regarded the plans and specifications. He was never consulted about them. On the contrary, they were prepared by her architect, and put in his hands to work by. If he deviated from them, he was guilty of a breach of contract, for which he was responsible. His business was to work by, not to override them. It is thus apparent that the present case is not one where an architect, employed to furnish plans and specifications, is guilty of neglect, and of not exercising that degree of skill and judgment which the employer prays; but is a case where a mechanic is employed to supply work and materials according to plans and specifications which he is bound to follow. The rule of law is that a party is responsible for the ordinary degree of skill belonging to his trade or profession. But Jones was not an engineer or architect, but, as the case states, "a mason and house-builder." Nor di.l Miss Dermott treat with him in any other character than that of a mechanic, competent, not to plan, but to carry out her plans. She employed an architect, by whom the plans and specifications were prepared. Her remedy, then, for any defects in the plans and specifications, was by suit against the architect, not by recoupment against Jones. The architect should have ascertained, if necessary, by boring or otherwise, whether they were practicable. Messrs. Poe and Brent contra: The counsel of the other side do not cite one adjudged case in support of their view. The speculations of Pothier, the dicta of Story, or even the ab Argument for the owner of the soil. stract opinions of Bell and Kent, are not "authority" anywhere, and ought not to be cited. The theory of the other side makes the proprietor of the ground an insurer to the builder of the stability and solidity of the soil on which such builder contracts to build work. We might deny the soundness of such a doctrine in any case of a contract to build a house, where the payment of the price is to be made when the work is done; because a man cannot be said to build anything which falls down before he completes it. But, whatever may be the general rule, we rely, in the case here, upon the contract that this plaintiff will furnish every material and thing requisite to complete and finish these buildings fit for use and occupation. He does not merely covenant (as contended on the other side) to execute these specifications, but he superadds the contract that he will, over and above executing these, furnish everything necessary to complete it fit for use and occupation, and will deliver it finished and ready for occupation. The law, in cases like this, is settled and reported law from at least A.D. 1670, and from the leading case of Paradine v. Jayne, given us by the old reporter Alleyn, in 23d Charles II. The defendant there had taken a lease, covenanting to pay rent. He pleaded "that a certain German prince, by name Prince Rupert, an alien born, enemy to the king and kingdom, had invaded the realm with a hostile army of men, and with the same force did enter upon the defendant's possession and him expelled, whereby he could not take the profits." On demurrer, the court resolved "that the matter of the plea was insufficient," and that "he ought to pay his rent." "And this difference," says Alleyn, "was taken: that where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him. . . . But where a party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. And, therefore, if the lessee covenant to repair a Argument for the owner of the soil. house, though it be burnt by lightning or thrown down by enemies, yet he ought to repair it;" and the report ends by declaring that where there is a covenant to pay, "though the land be surrounded or gained by the sea, or made barren by wild-fire, yet the lessor shall have his whole rent;" and judgment went accordingly. This case has been always followed in England. American decisions are to the same general purpose, to wit, that a man must fulfil covenants deliberately made. Without citing earlier ones, or quoting at large even a late one in New York,* we refer to one of the very latest, where the best cases, both English and American, are collected. We mean School Trustees v. Bennett,† in New Jersey, a case which, like our own, was the case of building a house. This case is specially in point, or at least specially strong, for the house was there twice destroyed by natural causes. In the first instance, when it was half way towards completion, "a violent gale of wind arose suddenly, without any of the usual premonitory signs of a storm, and prostrated the building:" afterwards, and when rebuilt, "it fell, solely on account of the soil having become soft and miry;" though, at the time the foundations were laid, the soil was "so hard as to be penetrated with difficulty by the pickaxe," and its defects were latent; the softness having arisen, as was suggested, by the rising of springs; at any rate from "natural causes wholly beyond the control of the contractors." The court, however, was resolute, and decided that "if a person contract with the owner of a lot to build and complete a building on a certain lot, and, by reason of a latent defect in the soil, the building falls down before it is completed, the loss falls upon the contractor;" and decided even, as in the case in New York, that the owner of the soil may recover back payments which he has made on account. The court reviewed the authorities from Paradine v. Jayne, in old Alleyn, down; and say, finally, "No matter how harsh and apparently unjust in its operation the rule may occasionally be, it cannot be denied that it has its foun * Tomkins v. Dudley, 25 New York, 272. † 3 Dutcher, 515. Opinion of the court. dation in good sense and inflexible honesty. He that agrees to do an act should do it, unless absolutely impossible. He should provide against contingencies in his contract. . . . The cases make no distinction between accidents that could be foreseen when the contract was entered into, and those that could not have been; 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 Mr. Justice SWAYNE delivered the opinion of the court: The defendant in error insists that all the work he was required to do is set forth in the specifications, and that, having fulfilled his contract in a workmanlike manner, he is not responsible for defects arising from a cause of which he was ignorant, and which he had no agency in producing. Without examining the soundness of this proposition, it is sufficient to say that such is not the state of the case. specifications and the instrument to which they are annexed constitute the contract. They make a common context, and must be construed together. In that instrument the defendant in error made a covenant.* That covenant it was his duty to fulfil, and he was bound to do whatever was necessary to its performance. Against the hardship of the case he might have guarded by a provision in the contract. Not having done so, it is not in the power of this court to relieve him. He did not make that part of the building "fit for use and occupation." It could not be occupied with safety to the lives of the inmates. It is a well-settled rule of law, that if a party by his contract charge himself with an obligation possible to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him.† * See Paradine v. Jayne, Alleyn, 27: Beal v. Thompson, 3 Bosanquet & Puller, 420); Beebe v. Johnson, 19 Wendell 500; 3 Comyn's Digest, 93. |