The Plaintiff contractor had partially performed under a construction contract with the Defendant when the Defendant’s warehouse was totally destroyed by a fire.
The test of benefit received adopted by the Court herein was “that the liability of the owner in a case like this should be measured by the amount of contract work done which, at the time of the destruction of the structure, had become so far identified with it as that but for the destruction it would have inured to him as contemplated by the contract.
Pursuant to the contract to construct a reinforced concrete floor in the Defendant’s warehouse, the Plaintiff had removed the old floor, put in concrete footings, built wooden forms for concrete pillars to support the floor, and installed reinforcing rods in these columns. The warehouse was then destroyed through the fault of neither party, and the Plaintiff sued to recover his performance prior to the fire.
The trial court permitted recovery for substantially what had been done by way of performance before the fire.
Was the Defendant benefited such that he was liable for services performed by the Plaintiff; and if so, to what extent?
Reversed and remanded with direction to take such additional evidence as may be necessary and determine the rights of the parties according to the views which have been expressed.
· Applying the test state, the Plaintiff should recover for work done in cutting the old floor away from the wall and removing the old floor. The benefit had inured to the Defendant when the fire occurred; and had the fire not occurred the floor would have been removed exactly as the contract contemplated. The Plaintiff should also recover for the concrete footings.
· The Plaintiff should not recover for the construction of either column or floor forms, as they were temporary devices that would have been removed when the work was complete.
· The Plaintiff should not recover for either upright or floor rods, or the labor putting them into place, as they were not attached to the building and would not have been wrought into the structure until the concrete was poured.
The upright rods set up and tied together were a part of the building, and recovery from them should have been allowed.
The Plaintiff contractor was entitled to recover for the work he had done prior to the fire the benefit of which could already be viewed as passing to the Defendant.