I do not concur in the opinion of the Chief Justice herein.
The evidence shows that the defendant, G.W. Williams, owned a house and lot in the city of Greenville. The house having been partially destroyed by fire, the defendant, Williams, entered into a contract with the plaintiff, Sammons, wherein it was agreed that Sammons should rebuild the house, furnishing all of the material necessary for this purpose after using such framing and other lumber as was not destroyed by the fire, and the defendant was to pay for the job, when complete, the sum of seven hundred ($700) dollars. After making the contract and before entering upon the work of reconstructing the house, Sammons formed a partnership with the plaintiff, Bishop, and they began work on the building under the contract formerly made with Sammons. In order to secure themselves against loss in case the partially constructed house should be destroyed, Sammons and Bishop took out a policy of insurance on the building for $450 with The American Home Fire Insurance Company.
While the house was being built, Sammons and Bishop were compelled to delay the work for the lack of sufficient funds with which to carry it on, and the defendant advanced to them, in cash and material, about $600 and procured a policy of $1,000 with the same company in which the plaintiffs *Page 374 had their interest insured. While both policies were in force and before the house was completed, it was totally destoyed by fire. The builders brought suit on their policy for the full amount of it, $450. The insurance company procured an order from Court allowing them to pay into Court the full amount of its liability under the two policies issued by it, and, by consent of all parties, the contractors and Williams agreed to litigate their rights between themselves. The case came on for trial before Judge Memminger, and a jury. When all the evidence was in, Judge Memminger instructed the jury to find for the defendant, Williams, and the plaintiffs appealed from this ruling. I think that his Honor was correct and that the exceptions should be overruled.
It is not disputed, nor is there any question, that each of the parties had an insurable interest in the house. The house belonged to Williams, and, by the terms of the contract, the contractors were to turn it over to him when completed, and he was to pay them $700. While the house was in the process of construction, Williams advanced to Sammons and Bishop about six hundred ($600) dollars on the contract price. In order to fulfil their own obligation, the plaintiffs necessarily had to spend some of their money, and if the house should be burned before they completed their contract without insurance they would lose the amount expended by them. It is for the purpose of securing the contractor against such loss and to enable him, without material injury to himself, to start over again and carry out the obligation of his contract that the law allows him to insure. The evidence in this case shows that the plaintiffs have been paid for the work done and material furnished up to the time of the destruction of the building, and have refused to perform their obligation under the contract. Williams has paid out $600 and has a burned and destroyed house to represent this outlay of money. To allow the contractors to recover anything more would be to put a premium *Page 375 on violating contracts and causing the innocent to suffer. In this case it would give a profit to Sammons and Bishop for violating their contract at the expense of Williams, and would be inequitable and unjust under all the facts of the case. In my view, the decision of Judge Memminger is correct and should be sustained. Williams had a contract, whereby he was to have a completed house for $700; he has paid $600 and has no house. Sammons and Bishop had a contract whereby they were to be paid $700 when the house was completed; they have been paid $600 and have not completed their contract, but have abandoned it.
Under all the circumstances, I think that the exceptions should be overruled and the judgment of the Circuit Court affirmed.
MR. JUSTICE WOODS concurs.