Law School Site - Case Breif
Carroll v. Bowersock, 164
Measured by benefit to owner--
Bowersock (P) was contracted by Carroll (D) to perform some work
on D's building. P had removed the old floor, set the footings,
and installed reinforcing rods when the warehouse was destroyed by
fire. The trial court permitted P to recover the value of the work
performed regardless of the value of any benefit conferred on D. D
appeals, claiming that P owed him a completed floor that D could
test against contract specifications and that he derived no
benefit from removal of the old floor and the setting of forms
without the floor actually being poured.
Can a party recover for the
benefit derived from part performance of a construction project
when completion is precluded by an act of God not within the
contemplation of the parties?
Yes. Judgment reversed.
Because neither party can be charged with delinquency when
the contract cannot be fulfilled as anticipated, D is only
responsible to pay for the benefit he received rather than the
value of the work performed. The test to determine if a benefit
has accrued is whether the work would have inured to D's benefit
as contemplated by the contract if the fire had not occurred.
P can recover for
removal of the floor because the warehouse was improved to that
extent and the benefit inured to D prior to the fire. The same is
true for whatever footings were actually poured. However, the
settings of forms and the installation of steel reinforcements
where concrete was never poured did not benefit D because they
added nothing to the value of the structure until the concrete was
Some courts expand this rule to
include the value of materials at the building site if they also
were destroyed by fire, etc., even though not yet incorporated
into the structure. Other courts allow recovery of a proportionate
part of the total contract price
P can recover the proportion that
the value of the work finished bears to the value of the work
if wholly completed,
multiplied by the contract price). This method has been criticized
because it saves the contractor from part of the loss that he
otherwise would have sustained on full performance, and hence may
tempt destruction of the building.
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