B-91734, FEBRUARY 23, 1950, 29 COMP. GEN. 336

B-91734, FEBRUARY 23, 1950, 29 COMP. GEN. 336

CONTRACTS - PERFORMANCE - DESTRUCTION OF BUILDING BEING REPAIRED A CONTRACT FOR THE REPAIR OF AN EXISTING GOVERNMENT BUILDING--- AS DISTINGUISHED FROM ONE FOR THE CONSTRUCTION OF A NEW BUILDING--- CONTAINS AN IMPLIED CONDITION THAT THE BUILDING SHALL REMAIN IN EXISTENCE, AND ITS DESTRUCTION BY FIRE WITHOUT FAULT OF EITHER PARTY EXCUSES FURTHER PERFORMANCE AND ENTITLES THE CONTRACTOR TO RECOVER THE VALUE OF LABOR AND TRUCK USE IDENTIFIED WITH THE REPAIR WORK ACTUALLY PERFORMED; HOWEVER, THE SIMULTANEOUS LOSS OF MATERIALS PURCHASED BY THE CONTRACTOR BUT NOT USED TO BENEFIT THE GOVERNMENT MUST FALL UPON THE CONTRACTOR, WHO OWNED THE MATERIALS AT THE TIME OF DESTRUCTION.

COMPTROLLER GENERAL WARREN TO CURTIS E. STEWART, FEBRUARY 23, 1950:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 8, 1949, ADDRESSED TO B. L. HADLEY, SUPERINTENDENT, ACADIA NATIONAL PARK, AND FORWARDED BY THE LATTER TO THIS OFFICE. IN YOUR LETTER YOU REQUEST REVIEW OF SETTLEMENT OF THIS OFFICE DATED MAY 21, 1948, WHICH DISALLOWED YOUR CLAIM FOR $126.80 FOR LABOR AND MATERIALS ALLEGEDLY FURNISHED IN PART PERFORMANCE OF PURCHASE ORDER CONTRACT NO. 1-158, DATED OCTOBER 9, 1947.

BY THE TERMS OF THE CONTRACT YOU AGREED TO FURNISH, WITHIN 10 DAYS, THE LABOR AND MATERIAL NECESSARY TO PAINT THE RESIDENCE AND GARAGE ON THE HOMANS PROPERTY, ACADIA NATIONAL PARK, FOR THE SUM OF $325. THE CONTRACT REQUIRED THE PAINT TO BE MIXED ON THE JOB, AND PROVIDED THAT SPACE WOULD BE ASSIGNED BY THE CONTRACTING OFFICER FOR THE STORAGE AND MIXING OF PAINT. IT APPEARS THAT YOU WERE GIVEN KEYS TO THE HOMANS RESIDENCE AND GARAGE ON OCTOBER 21, 1947; THAT YOU TOOK YOUR LADDERS, PAINT BRUSHES, PAILS, AND RAW MATERIALS FOR MIXING THE PAINT TO THE JOB THAT DAY AND STORED THEM, EXCEPT FOR THE LADDERS, IN THE GARAGE AS YOU WERE ALLOWED TO DO; THAT YOU AND ONE OF YOUR MEN WORKED EIGHT HOURS EACH ON OCTOBER 22, 1947, SCRAPING, TOUCHING UP, AND OTHERWISE PREPARING THE HOUSE FOR PAINTING; AND THAT ON OCTOBER 23, 1947, THE PREMISES AND A LARGE PART OF THE TOWN OF BAR HARBOR WERE DESTROYED BY A FOREST FIRE. THEREAFTER YOU PRESENTED A BILL FOR $126.80, OF WHICH $97.80 REPRESENTED THE COST OF WHITE LEAD AND OTHER PAINT INGREDIENTS, AND $29 REPRESENTED THE VALUE OF 16 HOURS' LABOR AND TWO TRIPS WITH YOUR TRUCK TO THE JOB.

YOUR CLAIM WAS FORWARDED TO THIS OFFICE FOR DIRECT SETTLEMENT, AND WAS DISALLOWED FOR THE REASON THAT YOU WOULD NOT HAVE SUFFERED THE DAMAGE COMPLAINED OF HAD YOU PERFORMED THE WORK WITHIN THE TEN-DAY PERIOD FIXED BY THE CONTRACT FOR ITS COMPLETION. IN YOUR LETTER OF NOVEMBER 8, 1949, YOU STATE THAT YOU WERE DIRECTED BY THE CONTRACTING OFFICER NOT TO BEGIN WORK UNTIL OCTOBER 19 OR 20, 1947, BECAUSE OF CERTAIN CARPENTRY WORK BEING DONE ON THE HOUSE INVOLVED. YOUR CONTENTIONS IN THIS REGARD HAVE BEEN CORROBORATED BY THE ADMINISTRATIVE OFFICE, AND IT APPEARS, THEREFORE, THAT YOU WOULD HAVE COMPLETED THE CONTRACT WORK ON TIME BUT FOR THE FIRE.

HOWEVER, EVEN THOUGH YOU MIGHT HAVE COMPLETED THE WORK ON TIME, THE FACT REMAINS THAT BECAUSE OF THE FIRE YOU DID NOT. THE CONTRACT INVOLVED MADE NO PROVISION FOR ANY PAYMENT IN THE EVENT ITS PERFORMANCE BECAME IMPOSSIBLE, AND THE QUESTION AS TO YOUR RIGHT TO COMPENSATION FOR THE PARTIAL PERFORMANCE YOU RENDERED MUST BE DECIDED ON PRINCIPLES OF GENERAL LAW. IT IS TOO WELL SETTLED TO REQUIRE CITATION OF AUTHORITY THAT ONE WHO CONTRACTS TO CONSTRUCT A FINISHED STRUCTURE FOR A FIXED PRICE PAYABLE UPON COMPLETION MUST BEAR THE RISK OF ACCIDENTAL DESTRUCTION OF THE BUILDING DURING THE PROGRESS OF THE WORK. IN THE CASE OF REPAIR WORK TO BE DONE ON AN EXISTING STRUCTURE, HOWEVER, THE GENERAL RULE IN THIS COUNTRY IS THAT THE AGREEMENT FOR THE WORK IS UPON THE IMPLIED CONDITION THAT THE BUILDING SHALL REMAIN IN EXISTENCE, AND ITS DESTRUCTION WITHOUT THE FAULT OF EITHER PARTY EXCUSES FURTHER PERFORMANCE OF THE CONTRACT AND ENTITLES THE CONTRACTOR TO RECOVER THE REASONABLE VALUE OF THE PART PERFORMANCE ALREADY EFFECTED. SEE 53 A.L.R. 122N AND CASES THERE CITED. WITH RESPECT TO THE AMOUNT RECOVERABLE IN SUCH CASE, IT HAS BEEN RATHER CONSISTENTLY HELD THAT THE OWNER'S LIABILITY IS LIMITED TO SUCH PORTIONS OF THE WORK AND MATERIALS AS HAVE BECOME SUFFICIENTLY IDENTIFIED WITH THE STRUCTURE THAT THEY WOULD, BUT FOR ITS DESTRUCTION, HAVE INSURED TO THE OWNER'S BENEFIT. YOUNG V. CITY OF CHICOPEE, 186 MASS. 518, 72 N.E. 63. IN THE INSTANT CASE, IT APPEARS THAT TITLE TO THE $97.80 WORTH OF PAINT INGREDIENTS WHICH WERE DESTROYED WAS IN YOU AND NOT IN THE GOVERNMENT. AS WAS STATED IN THE CASE OF CARROLL V. BOWERSOCK, 100 KAN. 270, 164 P. 143, L.R.A. 1917D, 1006:

* * * THE OWNER CANNOT BE CALLED ON TO REIMBURSE THE CONTRACTOR MERELY BECAUSE THE CONTRACTOR HAS BEEN TO EXPENSE IN TAKING STEPS TENDING TO PERFORMANCE. A CONTRACTOR MAY HAVE PURCHASED SPECIAL MATERIAL TO BE USED IN REPAIRING A HOUSE, AND MAY HAVE HAD MUCH MILLWORK DONE UPON IT. IF THE MATERIAL REMAIN IN THE MILL, AND THE HOUSE BURN, THERE CAN BE NO RECOVERY. IF THE MILLED MATERIAL BE DELIVERED AT THE HOUSE READY FOR USE, AND THE HOUSE BURN, THERE CAN BE NO RECOVERY. IT TAKES SOMETHING MORE TO MAKE THE OWNER LIABLE FOR WHAT THE CONTRACTOR HAS DONE TOWARD PERFORMANCE. THE OWNER MUST BE BENEFITED. HE SHOULD NOT BE ENRICHED AT THE EXPENSE OF THE CONTRACTOR. THAT WOULD BE UNJUST, AND TO THE EXTENT THAT THE OWNER HAS BEEN BENEFITED, THE LAW MAY PROPERLY CONSIDER HIM AS RESTING UNDER A DUTY TO PAY. THE BENEFIT WHICH THE OWNER HAS RECEIVED MAY OR MAY NOT BE EQUIVALENT TO THE DETRIMENT WHICH THE CONTRACTOR HAS SUFFERED. THE ONLY BASIS ON WHICH THE LAW CAN RAISE AN OBLIGATION ON THE PART OF THE OWNER IS THE CONSIDERATION HE HAS RECEIVED BY WAY OF BENEFIT, ADVANTAGE, OR VALUE TO HIM. IT CAN HARDLY BE ARGUED THAT THE GOVERNMENT RECEIVED A BENEFIT FROM MATERIALS WHICH IT NEVER OWNED, AND SINCE OWNERSHIP OF THE MATERIALS HERE INVOLVED REMAINED IN YOU, THE FAMILIAR MAXIM RES PERIIT DOMINO, THAT IS, WHEN A THING IS LOST OR DESTROYED THE LOSS MUST BE BORNE BY THE PERSON WHO WAS THE OWNER OF IT AT THE TIME, WOULD APPEAR TO BE APPLICABLE. TO THE SAME EFFECT AS THE CASES ABOVE CITED ARE THE OLLOWING: HAYES V. GROSS, 9 APP. DIV. 12, 40 N.Y.S. 1098, AFFIRMED ON OPINION BELOW, 162 N.Y. 610, 57 N.E. 1112; DAME V. WOOD, 75 N.H. 38, 70 A. 1081; GOLDFARB V. COHEN, 92 CONN. 277, 102 A. 649; AND MATTHEWS CONST. CO. V. BRADY, 104 N.J.L. 438, 140 A. 433. SEE, ALSO, 170 A.L.R. 980N.

UNDER THE CIRCUMSTANCES, THEREFORE, IT MUST BE HELD THAT RISK OF LOSS OF THE PAINT INGREDIENTS, VALUED AT $97.80, WAS YOURS, AND THE DISALLOWANCE OF THAT PORTION OF YOUR CLAIM IS SUSTAINED. WITH RESPECT TO THE $29 BALANCE OF YOUR CLAIM, REPRESENTING LABOR AND TRUCK USE IDENTIFIED WITH ACTUAL WORK ON THE BUILDING BEFORE ITS DESTRUCTION, THE GOVERNMENT APPEARS TO BE LIABLE UNDER THE AUTHORITY OF THE CASES CITED ABOVE, AND SETTLEMENT IN YOUR FAVOR FOR $29 WILL BE ISSUED IN DUE COURSE.