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Tompkins v. Dudley

    Brief Fact Summary.

    Plaintiffs sued to recover money advanced by them to Defendants to build a school-house, and for damages from the non-performance of the contract.  The school-house burned down when the contract was substantially performed by the Defendant, but not entirely completed according to the specifications. 

    Synopsis of Rule of Law.

    There is no legal justification for the non-performance of a contract.  A contractor bears the risk of loss prior to completion of a contract. 

    Facts.

                The school-house burned down when it was almost complete, but there was still some painting to be done, the blinds were not up and the key had not yet been delivered to the Plaintiffs. 

    The lower court entered judgment for the Defendants, and it was affirmed at general term.

    Issue.

    Were Plaintiffs entitled to recover?

    Held.

    Yes.  Reversed, and a new trial ordered.

    ·         The builder created a liability and incurred a duty by his own contract, which Defendants guaranteed he should perform, and which he did not fully perform. 

    ·         The party that agrees to do an act should do it, unless absolutely impossible.  He should provide against contingencies in his contract.  

    Dissent.

    None.

    Concurrence.

    None.

    Discussion.

    The risk of loss lies with the builder until full completion of a project.  


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