Carroll v. Bowersock, 164 P. 143 (Kan. 1917).

Measured by benefit to owner--

1)          Facts. 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.

2)          Issue. 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?

3) Held. Yes. Judgment reversed.

a)          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.

b)          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 set. Comment. 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 (i. e., 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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