25 N.Y. 272 (1862).

Defendant contracted with Plaintiff, as trustee, to erect a schoolhouse for a specified sum.  Payments in part were to be made as the work progressed.  Before the building was completed, however, it was burned to the ground.

Plaintiff was allowed to recover the sums paid to Defendant upon the contract.  The court rejected Defendant’s impossibility of performance defense.  The court observed that the builder during the performance of his agreement had the schoolhouse in his possession, and completely under his dominion.  He was able to insure his pay by a lien upon the property and to indemnify himself from loss by fire by insurance.  The court reasoned that, where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and hath no remedy over, there the law will excuse him; but when the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity; because he might have provided against it by his contract.

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