than was anticipated. 21 Even delay is not excused. Difficulties in the construction of a building or other undertaking in process of construction, due to unusual weather or conditions of soil or the like, do not free the contractor from liability for breach of his promise to complete the structure by a given day.22 Vagaries of the weather are of such ordinary occurrence that possible delay from that cause should be anticipated. The parties cannot be supposed to have contracted on the assumption that the weather would be continuously favorable.23

§ 1965. Contract to work on building.

Though one who contracts to build is not discharged from liability on his contract because of the destruction of his first or other attempts to perform the contract, the situation is different where the contract is to do work on a building and the building is destroyed. Here the parties assumed the continued existence of the building upon which the work was to be done, and if this assumption ceases to be true, the obligation is discharged.24 Even though another similar building

21 Maryland Dredging Co. v. United States, 47 Ct. Cl. 557, affd. 241 U. S. 184, 60 L. Ed. 945, 36 S. Ct. Rep. 545; Rowe v. Peabody, 207 Mass. 226, 93 N. E. 604; Fruin v. Crystal R., 89 Mo. 397, 14 S. W. 557. But see Kinzer Const. Co. v. State, 125 N. Y. S. 46.

22 Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762; Simpson v. United States, 172 U. S. 372, 19 S. Ct. 222, 43 L. Ed. 482; Phoenix Bridge Co. v. United States, 38 Ct. Cl. 492; Cannon v. Hunt, 113 Ga. 501, 38 S. E. 983; Harley v. Sanitary Dist., 226 Ill. 213, 80 N. E. 771; Brent v. Head &c. Co., 138 Ia. 146, 115 N. W. 1106, 16 L. R. A. (N. S.) 801; Stevens v. Lewis-WilsonHicks Co., 170 Ky. 238, 18 S. W. 873; Cook &c. Contracting Co. v. Denis, 124 La. 161, 49 So. 1014; Cowan v. Meyer, 125 Md. 450, 94 Atl. 18; Cochran v. People's R., 131 Mo. 607, 33 S. W. 177; McQuiddy v. Brannock,

70 Mo. App. 535; Carter v. Root, 84 Neb. 723, 121 N. W. 952; Ward v. Hudson River Bg. Co., 125 N. Y. 230, 26 N. E. 256; Sands v. Quigg, 111 Va. 476, 69 S. E. 440; Reichenbach v. Sage, 13 Wash. 364, 43 Pac. 354, 52 Am. St. 51; Cockshutt Plow Co. v. Alberta Bg. Co., 3 Alberta L. R. 503. See also Jones v. St. John's College, L. R. 6 Q. B. 115, with which compare Dodd v. Churton, [1897] 1 Q. B. 563; Bentley v. State, 73 Wis. 416, 41 N. W. 338.

23 Usrey Lumber Co. v. Huie-Hodge Lumber Co., 135 La. 511, 65 So. 627. See also as to carrier's contracts, supra, § 1099.

24 Krause v. Board of Trustees, 162 Ind. 278, 70 N. E. 264, 65 L. R. A. 111, 102 Am. St. Rep. 203; Butterfield v. Byron, 153 Mass. 517, 27 N. E. 667, 25 Am. St. Rep. 654. The decision of Chapman v. Beltz, 48 W. Va. 1, 35 S. E. 1013, and dictum in Weis v. Devlin, 67 Tex. 507, 510, 3 S. W. 726,

were erected, the contractor would not be bound to work upon that. It would be a different building and a variation of his contract.25 The more troublesome question, whether the builder can recover compensation for the work which he has done, is subsequently considered. 26

§ 1966. Liability for defective plans.

Even though the plans upon which a contractor undertakes to construct a building are so defective as to cause the building to fall while in course of erection, he is not generally relieved from liability.27

The propriety of these decisions depends upon the question whether the owner can be regarded as warranting the sufficiency of the plans. If the owner through his architect or engineer can be regarded as having superior expert knowledge, and on the basis of such knowledge to represent to the builder the feasibility of carrying out the plans, the owner must be held responsible for the consequences of any defects in them. 28 In ordinary cases, perhaps, the builder may be supposed to have sufficient knowledge of what is feasible to make unfounded the assumption of justifiable reliance by him on the superior knowledge of another; but where the work in question involves technical engineering skill, and the plans are made by expert professional men engaged by the owner there seems good reason for implying a warranty.29

ination of the premises, would be a sufficient justification for the breaking of the contract by the plaintiffs. If, however, as the plaintiffs now claim, and undertook to show at the trial, the character of the soil in that particular locality was a matter of common knowledge, the defendant might reasonably assume that the plaintiffs would be advised of it, or could easily acquire, and perhaps had acquired, a sufficient knowledge of it."

28 In Faber v. City of New York, 222 N. Y. 255, 118 N. E. 609, 610, the court said of such a case: "Clearly, the references to this plan contained in all the papers before us was sufficient to show that the contract was made by both parties upon the understanding and with the supposition that the bedrock was substantially as therein indicated. It would be wholly inequitable to hold that under such circumstances, where the contractor had no reasonable opportunity of discovering the truth, and where the other party had made the examination and asked for bids upon plans showing the results of such examination, the latter can be heard to say

that it is not responsible, should those plans wholly misrepresent the facts. Langley v. Rouss, 185 N. Y. 201, 77 N. E. 1168, 7 Ann. Cas. 210." See also Atlanta Construction Co. v. State, 103 N. Y. Misc. 233, 175 N. Y. S. 453, where a statement on plans to the effect that stone for the work was obtainable at a certain distance from the work was held a warranty and the contractor was allowed the extra expense of hauling stone from a greater distance. Cf. Rowe v. Peabody, 207 Mass. 226, 233, 93 N. E. 604, where "the contract expressly stated that the nature of the underground plot had not been investigated and that the committee of the town denied any responsibility for its character."

29 In United States v. Spearin, 248 U. S. 132, 39 Sup. Ct. Rep. 59, 63 L. Ed. 166, the court said: "This responsibility of the owner is not overcome by the usual clauses requiring builders to visit the site, to check the plans, and to inform themselves of the requirements of the work, as is shown by Christie v. United States, 237 J. S. 234, 35 Sup. Ct. 565, 59 L. Ed. 933; Hollerbach v. United States, 233 U. S. 165, 34 Sup. Ct. 553, 58 L. Ed. 898,

Though the builder may be liable if he fails, by reason of defective plans furnished him, to complete work which he has undertaken, yet if he can and does complete it according to the plans he is not liable for subsequent inferiority, injury or destruction of the work, due to the defective character of the plans. 30

§ 1967. Covenants to repair.

In the Civil law a lease is regarded as a contract rather than a conveyance and the duty is imposed upon the landlord of keeping leased premises in repair, and even if he is excused by impossibility the tenant is freed from liability to pay rent; 31 but in the English and American law, in the absence of an express covenant in the lease to that effect, neither the landlord, 32 nor (except so far as is necessary to make good the consequences of his own careless or improper use of the premises) the tenant,33 is under any obligation to repair. An express covenant to repair or to keep in repair demised premises obliges the covenantor not only to repair but to rebuild structures

and United States v. Stage Co., 199 U. S. 414, 424, 26 Sup. Ct. 69, 50 L. Ed. 251, where it was held that the contractor should be relieved, if he was misled by erroneous statements in the specifications."

30 Bush v. Jones, 144 Fed. 942, 75 C. C. A. 582, 6 L. R. A. (N. S.) 774; New York v. Pennsylvania Steel Co., 206 Fed. 455, 124 C. C. A. 360; Hills v. Farmington, 70 Conn. 450, 39 Atl. 795; Porter v. Wilder, 62 Ga. 520; Clark v. Pope, 70 Ill. 128; Culbertson v. Ashland Cement, etc., Co., 144 Ky. 614, 139 S. W. 792; Hebert v. Weil, 115 La. 424, 39 So. 389; Schliess v. Grand Rapids, 131 Mich. 52, 90 N. W. 700; Perkins v. Roberge, 69 N. H. 171, 39 Atl. 583; Tide Water Building Co. v. Hammond, 144 N. Y. App. Div. 920, 129 N. Y. S. 355; McLane v. DeLeyer, 56 N. Y. 619; MacKnight Flintic Stone Co. v. New York, 160 N. Y. 72, 54 N. E. 661; Dwyer v. New York,

77 N. Y. App. Div. 224, 79 N. Y. S. 17 (see also Sundstrom v. New York, 213 N. Y. 68, 106 N. E. 924); Filbert v. Philadelphia, 181 Pa. 530, 37 Atl. 545; Harlow v. Homestead, 194 Pa. 57, 45 Atl. 87; Ward v. Pantages, 73 Wash. 208, 131 Pac. 642.

31 See authorities collected in Viterbo v. Friedlander, 120 U. S. 707, 30 L. Ed. 776, 7 S. Ct. 962 (holding this rule applicable in Louisiana), also German Civil Code, § § 536, 537.

32 Manchester Warehouse Co. v. Carr, 5 C. P. D. 507; Viterbo v. Friedlander, 120 U. S. 707, 712, 30 L. Ed. 776, 7 S. Ct. 962; Phelan v. Fitzpatrick, 188 Mass. 237, 74 N. E. 326, 108 Am. St. Rep. 469; Kingsbury v. Westfall, 61 N. Y. 356.

33 Auworth v. Johnson, 5 C. & P. 239; Doe v. Amey, 12 Ad. & E. 476; United States v. Bostwick, 94 U. S. 53, 66, 24 L. Ed. 65.

thereon, although the injury or destruction is due to the elements, unavoidable accident, or the wrongful act of a stranger. 34 A covenant to return leased premises at the end of the term in as good condition as they were at the time of the lease, ordinary wear and tear excepted, has been given a different construction, and if the premises are destroyed without fault of the tenant he is not bound to restore them.35 If for the first time action had been brought in the sixteenth century on a covenant in this form, or in the latter part of the nineteenth century on a covenant in terms to repair, it may be doubted whether any distinction would have been taken. If the lessee, in compliance with a covenant, rebuilds or repairs he has no right to insurance money received by the landlord, but insurance being a contract of indemnity the landlord cannot recover insurance on buildings rebuilt by the tenant in accordance

34 Walton v. Waterhouse, 1 Wms. Saund. 420; Bullock v. Dommitt, 6 T. R. 650; Company of Brecknock Navigation v. Pritchard, 6 T. R. 750; Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762; Polack v. Pioche, 35 Cal. 416, 95 Am. Dec. 115; Meyers v. Myrell, 57 Ga. 516; Ely v. Ely, 80 Ill. 532; Barnhart v. Boyce, 102 Ill. App. 172; David v. Ryan, 47 Iowa, 642; Proctor v. Keith, 12 B. Mon. 252; Phillips v. Stevens, 16 Mass. 238; Leavitt v. Fletcher, 10 Allen, 119; Abby v. Billups, 35 Miss. 618, 72 Am. Dec. 143; Fowler v. Payne, 49 Miss. 32; O'Neil v. Flanagan, 64 Mo. App. 87; Lincoln Trust Co. v. Nathan, 175 Mo. 32, 74 S. W. 1007; Beach v. Crain, 2 N. Y. 86, 49 Am. Dec. 369; Young v. Leary, 135 N. Y. 569, 578, 32 N. E. 607; Linn v. Ross, 10 Ohio, 412, 36 Am. Dec. 95; Hoy v. Holt, 91 Pa. St. 88, 36 Am. Rep. 659; Armstrong v. Maybee, 17 Wash. 24, 48 Pac. 737, 61 Am. St. 898. See also Brecknock &c. Co. v. Pritchard, 6 T. R. 750; People v. Plainfield Ave. &c. Co., 105 Mich. 9, 62 N. W. 998; Mitchell v. Weston, (Miss.), 45 So. 571, 15 L. R. A. (N. S.) 833. But see contra,

36

In

Wattles v. South Omaha Ice & C. Co., 50 Neb. 251, 69 N. W. 785, 36 L. R. A. 424, 61 Am. St. Rep. 554; Louisiana C. C., Art. 2723 (referred to in Schwartz v. Saiter, 40 La. Ann. 264, 4 So. 77). See also Gavan v. Norcross, 117 Ga. 356, 361, 43 S. E. 771. Coleman v. Mississippi, etc., Boom Co., 114 Minn. 443, 131 N. W. 641, 35 L. R. A. (N. S.) 1109, the defendant who had contracted to construct and "maintain " a boom to protect the plaintiff's land was held not liable for damage caused by the destruction of the boom by an unprecedented flood. The defendant rebuilt the boom. See also Brown v. Susquehanna Boom Co., 109 Pa. 57, 1 Atl. 156, 58 Am. St. Rep. 708.

As to the landlord's right to rent after destruction of the premises, see supra, §§ 944, 945.

35 Warren v. Wagner, 75 Ala. 188, 51 Am. Rep. 446; Wainscott v. Silvers, 13 Ind. 497; Young v. Leary, 135 N. Y. 569, 578, 32 N. E. 607; Howeth v. Anderson, 25 Tex. 557, 78 Am. Dec. 538. See also Pollard v. Shaeffer, 1 Dall. (U.S.) 210, 1 L. Ed. 104. 36 Ely v. Ely, 80 Ill. 532.