On Petition to Transfer
This case is before us on petition to transfer from the Appellate Court under Acts
In this case a building in the processs of repairs by the installation of a sprinkler system was destroyed by fire. The destruction of a building which is the subject of the contract for repairs excuses the performance of the remainder of the contract as to each party. The majority rule is that an event unforseen which creates an impossibility of performance by reason of the destruction of the subject matter of the contract will excuse the performance thereof by each of the parties. 6 Williston, Contracts §1975, at 5549 (rev. ed. 1938).
However, that is not the exact question here. The question here is: may a contractor who was originally obligated to perform a contract with reference to repairs on a building which has been destroyed by fire recover for partial work done not on the expressed contract but on quantum meruit? The authority on the latter question is divided in this country. 6 Williston, Contracts §§1975, 1977, at 5551-5557, (rev. ed. 1938).
However, in Indiana it seems under the authority of Krause v. Board, etc. (1904), 162 Ind. 278, 70 N. E. 2d 264, 65 L. R. A. 111, this Court has said that it leaves both parties as it finds them in a case such as this and that neither can recover from the other if each is “equally blameless and irresponsible for the accident by which the property is destroyed.”
Petition to transfer is denied.
Myers, Landis and Achor, JJ., concur.
Jackson, J., dissents with opinion.