Robb v. Parten , 178 Minn. 188 ( 1928 )

¹ Reported in 220 N.W. 610, 226 N.W. 515. Appeal by plaintiff from a judgment entered against it in its action to foreclose a mechanic's lien for labor and materials.

The facts as found by the court are not in dispute and, in so far as necessary for a determination of this appeal, are in substance here stated. The conclusions of law drawn from the facts are challenged.

Plaintiff, a partnership, plumbing contractors, under a contract in writing duly entered into with defendants Parten, agreed "to furnish all labor and materials for the installation of the plumbing" in a dwelling being erected in Minneapolis. The contract also provided that the contractor would "furnish and install in a strictly first class manner piping, valves, fittings and plumbing fixtures and leave everything ready for normal and successful operation for the sum of Four Hundred Sixty Five Dollars ($465.00)." Prior to the completion of the contract, the building in question was destroyed by fire for which neither plaintiff nor defendants were shown to be responsible. The reasonable value of such labor and materials furnished before the fire was $297.13, no part of which was paid.

Within 90 days of the furnishing of the last item of said labor and materials, a lien statement was filed. An ordinance of Minneapolis prohibits any person or persons from carrying on the business of plumbing without first having obtained a license. Neither plaintiff nor either of its members had such a license. The work in question was done by a licensed plumber in plaintiff's employ under a permit therefor issued by the building department of the city, and the work was inspected and approved by the city building inspector.

The court further found:

"That during the time the plaintiffs did the work herein involved, they were independent contractors, and after plaintiffs had entered upon the performance of said contract as aforesaid and before completing their said contract with defendants, and on the 27th day of August, 1925, the building in which said plumbing work was partly done was destroyed by fire and no work was thereafter done under said contract."

One of the members of plaintiff partnership testified that continuance of the work was refused by plaintiff until a settlement was had with Parten on the work done before the fire.

Appellant raises two points: (1) That the ordinance does not apply to contractors who merely contract to furnish labor and materials; (2) that the ordinance is unconstitutional. The trial court in its memorandum stated:

"The ordinance, as far as here important, is held valid and the plaintiffs are denied a recovery, on the authority of: Solomon v. Dreschler, 4 Minn. 197 (278); Buckley v. Humason,50 Minn. 195, 52 N.W. 385, 16 L.R.A. 423, 36 A.S.R. 637; 30 A.L.R. 887, Anno. 30."

Because of the conclusion that we have reached in this case, it is not necessary to pass upon the constitutionality of the ordinance. It is likely that the ordinance did not by its terms require the plaintiff partnership to hold a license in order to enter into and carry out the contract referred to, the work being actually done by a duly licensed plumber and with the approval of the plumbing inspector. The plaintiff was an independent contractor. The contract was entire; it was not separable. It was incumbent upon plaintiff to complete the contract. The risk of the destruction by fire was one that could have been protected against and one which plaintiff assumed. Having failed to complete the contract and having refused to do so, basing such refusal apparently upon securing pay for what had already been done, plaintiff here cannot recover for a part performance. Kriger v. Leppel, 42 Minn. 6,8, 43 N.W. 484; Johnson v. Fehsefeldt, 106 Minn. 202, 204,118 N.W. 797, 20 L.R.A.(N.S.) 1069. "It is as well settled as anything in the law can be, that 'if a party, by his contract, charge himself with an obligation possible to be performed, he must make it good, unless performance is rendered impossible by the act of God, the law or the other party.' " City of Minneapolis v. Republic Creosoting Co. 161 Minn. 178, 190,201 N.W. 414, 419, and cases cited.

Affirmed.

AFTER REARGUMENT. On July 26, 1929, the following opinion was filed: