Tompkins v. . Dudley
25 N.Y. 272 (1862)
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Rule of Law:
When a party enters an absolute and unconditional contract to perform an act, such as erecting a building, performance is not excused by an inevitable accident or unforeseen contingency, like the destruction of the building before completion, unless the contract provides for such an event.
Facts:
- On August 31, 1857, Cornelius Chambers entered into a written contract with the plaintiffs to build a schoolhouse for $678.50, to be completed by October 1, 1857.
- The defendants guaranteed Chambers's performance of the contract.
- Chambers did not complete the building by the specified deadline of October 1, 1857.
- On the night of October 5, 1857, while Chambers was still in possession and working on it, the nearly completed schoolhouse was destroyed by fire.
- At the time of the fire, the building was not fully finished; a small amount of painting and the hanging of window blinds still needed to be done.
- The plaintiffs had not formally accepted the building, nor had the key been delivered by Chambers.
- Throughout the construction process, the plaintiffs had made periodic payments to Chambers as the work progressed.
Procedural Posture:
- The plaintiffs sued the defendants (guarantors of the builder's contract) in a trial court to recover payments made and damages for non-completion of the schoolhouse.
- The trial court judge found for the defendants, ruling that the destruction of the house did not constitute a legal defense to the action was incorrect, implicitly excusing non-performance.
- The plaintiffs (appellants) appealed the judgment to the present court (an appellate court).
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Issue:
Does the accidental destruction of a building by fire before its full completion and delivery excuse the contractor from the duty to perform under a contract to erect and complete the building?
Opinions:
Majority - Unspecified
No, the accidental destruction of the building before its completion does not excuse the contractor from their duty to perform. A party who, by their own contract, creates an absolute duty upon themself is bound to make it good, notwithstanding any accident or inevitable necessity, because they could have provided against it in the contract. The court reasoned that property title, and therefore the risk of loss, does not pass to the buyer until the object is finished and delivered. Citing a long train of decisions, including Harmony v. Bingham and Adams v. Nichols, the court affirmed the principle that when a duty is created by contract rather than by law, performance is not excused by an unforeseen event. The builder's 'fault and folly' was in not expressly providing for such contingencies in the contract. Since Chambers failed to complete and deliver the schoolhouse as promised, he and his guarantors (the defendants) are liable for the non-performance.
Analysis:
This case solidifies a strict common law rule regarding impossibility and risk allocation in construction contracts. It establishes that the default risk of loss during construction lies with the contractor, not the owner. This ruling incentivizes contractors to either purchase builder's risk insurance or negotiate specific contractual clauses (like force majeure clauses) to shift the risk of unforeseen events. The decision reinforces the principle of freedom of contract, holding parties to the explicit terms of their bargain and declining to insert exceptions for hardship that the parties themselves did not negotiate.
