1 Anglo-Egyptian Nav. Co. v. Rennie, L. R. 10 C. P. 271. See this case discussed infra, sec 745.

"In Rawson v. Clark, 70 111. 656, the contractors agreed to manufacture and put into a building, then in process of construction, certain iron work, but were prevented from completing their contract by the building being destroyed by fire without their fault, and the court held they could recover pro tanto, and without performing the balance of their contract.

"Hollis v. Chapman, 36 Tex. 1, was a case where the plaintiff, a carpenter, undertook to furnish materials and do the wood work necessary to finish the defendant's brick building, and to turn over the building complete by a given day, for a specified gross sum. When the plaintiff had nearly completed the work, the building was destroyed by fire, without his fault, and the court held that the plaintiff was entitled to recover for the materials furnished and work done by him. Stress was there laid upon the fact that the contract was conditional - that is, dependent upon the execution of another contract - and hence it was held to be ap-portionable, and the contractor entitled to a pro rata pay for his work.

"The facts stated clearly distinguish the case from Jackson v. Cleveland, 15 Wis. 107, and all the other cases cited by the counsel for the appellant, unless it is Brumby v. Smith, 3 Ala. 123, and that, in our judgment, is not sustained by principle or authority, and should, therefore, be disapproved. Upon principle as well as the authorities cited, we are induced to hold that - (1) Where there is a positive contract to do a thing, not in itself unlawful, the contractor must perform it or pay damages for not doing it, although in consequence of unforeseen accidents the performance of his contract has become unexpectedly burdensome or even impossible. (2) But this rule is only applicable when the contract is positive and absolute, and not subject to any condition, either express or implied. (3) Where from the nature of the contract it appears that the parties must, from the beginning, have known that it could not be fulfilled, unless, when the time for the fulfilment of the contract arrived, some particular specified thing continued to exist, so that when entering into the contract, they must have contemplated such continuing existence as the foundation of what was to be done; then, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor. (4) Where, as here, one having nothing to do with the painting, glazing, carpenter or joiner work, contracts to furnish materials for the mason work of a building and perform the labor thereon, except that the owner, for whom the same was to be constructed, was to furnish upon the ground all the sand, stone, and a certain quantity of lime, and haul all the brick, and the building, not being in the exclusive possession of such contractor, just before completion is destroyed by fire, without the fault of the it remains incomplete in consequence of the occurrence of an event for which neither party is responsible, then there may be a recovery for the portion performed.1 When, however, a contract is indivisible, the cessation of the existence of the object of the contract, if imputable to casus, is " a misfortune equally affecting both parties, excusing both from further performance of the contract, but giving a cause of action to neither."2 - On the general principle above stated, a substitute soldier, who agreed to serve for a year, but was released by the termination of the war, was held entitled to the full amount to be paid, he having abandoned other employments and devoted himself to this.3 But if a pupil is taken sick so as to be unable to attend a school in which he has engaged a place, this is an excuse for payment of the tuition fees, unless it should appear that the place was taken to the exclusion of some one else.4 - In the Roman law, contracts of labor (locatio operarum) by which a party agrees to work for a particular length of time, are distinguishable from jobbing contracts (locatio operis), or contracts to work at a particular thing, in this, that in the latter the contract is usually indivisible. Until the work of the locatio operis is finished, there is no performance. Hence, if the thing to be worked at is casually destroyed before its completion (as where a tailor undertakes to make a coat out of materials which are casually destroyed before the coat is made), the employee has ordinarily no claim for compensation. On the other hand, contracts of this class (contracts to work at a particular thing) are subject, as soon as the work is completed, to the rules applicable to contracts of sale of existing things. But before completion, such contracts of labor are likened to contracts for the sale of a res futura. And in the Roman law, work which is undertaken for a fixed price on materials furnished by the employee is treated as a sale. contractor, the loss must fall upon the owner, especially where he has the same insured at the time for his benefit; and such owner cannot require the completion of the balance of the building without restoring the parts which were so destroyed."

1 Infra, sec 714.

2 Appleby v. Meyers, L. R. 2 C. P. 651; and see Adams v. Nichols, 19 Pick. 275, cited supra, sec 322.

3 Leas v. Patterson, 38 Ind. 465.

4 Stewart v. Loring, 5 Allen, 306.

When the contract is to make a particular thing of a particular kind of material (e. g. a coat of broadcloth), then the casual destruction of stuff selected by the employee is no defence to a suit against him for damages for non-performance of his contract. The employee, in such cases, takes the risk of such destruction. It is otherwise when specific material is designated by both parties for the opus. If this material (e. g. a particular piece of cloth selected by the employer) is destroyed without the fault of either party, the employee, on his part, is not bound to pay damages to the employer to indemnify the latter for his loss in the non-delivery of the article, while the employee cannot recover wages for the time spent by him on the article, supposing the work to be indivisible. But, according to Mommsen,1 when the work is completed, the risk passes to the employer, so that if then the finished article is destroyed without the fault of either party, he becomes liable on his contract to pay for the labor expended by the employee. This is assuming that the work is done in compliance with the employer's directions, otherwise the contract is not complete, nor the risk transferred. - If acceptance is conditioned on approval, then the risk is on the employee until approval.2 From this rule are to be excepted cases in which the delay in approval is caused by the negligence of the employer. The conclusion at which Mommsen3 arrives, after an elaborate examination of the authorities, is that the employer, in cases in which the thing is destroyed by casus before completion, is not bound to pay the price of the labor, though it is otherwise as to destruction after approval. If the destruction occur after completion of the work, but before approval, the employee is only entitled to recover in case the work done was such as necessitated approval. - When delivery is to be in instalments (in pedes mensurasve), the measurement may be construed as an approval; the employer takes the risk from the time of measurement under his direction; so that, if after such measurement the thing measured is destroyed, he is bound to pay a proportionate price to the employee. The employer, therefore, in case of non-culpable destruction of the thing contracted for, cannot claim damages for the loss incurred by him, and is not liable to the employee, in such case, until the work is completed according to the terms of the contract. Liability, however, from the employer to the employee, arises in cases in which the employer has given to the employee defective material, or has provided an unsuitable place.

1 3d ed. 401.

2 To this point the following citations are made by Mommsen, p. 371: L. 36 D. locati (19, 2) Florentin. 1, 7 Instit.; L. 37 D. eodem Javolen. I. 8 ex Cassio.

"Opus, quod aversione locatum est, donee adprobetur, conductoris pericu-lum est. Quod vero ita conductum sit, ut in pedes mensurasve praestetur, eatenus conductoris periculo est, qua-tenus admensum non sit: etinutraque causa nociturum locatori, si per eum steterit, quo minus opus adprobetur vel admetiatur. Si tamen vi majore opus prius interciderit, quam adpro-baretur, locatoris periculo est: nisi si aliud actum sit: non enim amplius praestari locatori oporteat, quam quod sua cura atque opera consecutus esset." - "Si prius quam locatori opus pro-baretur, vi aliqua consumptum est, detrimentum ad locatorem ita pertinet, si tale opus fuit, ut probari deberet."

In the first case a distinction is taken between cases in which the work is assumed per aversionem, so that it is to be delivered and submitted to approbation as a whole, and cases in which the work is to be delivered by the foot or measure. In both cases the employee bears the risk until approval, conditioned, when the contract requires, on measurement.

3 P. 377.