## Facts

- A school district contracted with Cornelius Chambers to build and complete a schoolhouse on the district’s land by October 1, 1857.
- Dudley and other defendants executed a guaranty securing Chambers’s performance of the construction contract.
- By the deadline, the building was substantially finished but not fully completed; remaining items included painting, hanging blinds, and delivery of the key.
- The district had not taken possession, and the schoolhouse had not been delivered to or accepted by the district.
- On October 5, before completion and acceptance, the building burned down without fault of either party.
- The district had advanced progress payments to Chambers; after the fire, Chambers did not rebuild or complete the project.
- The district sued the guarantors to recover advanced payments and damages for failure to deliver a completed schoolhouse.

## Issues

1. Whether accidental destruction of the building before completion and acceptance excused the contractor’s nonperformance and discharged the guarantors.
2. Whether the risk of loss before completion and delivery fell on the contractor rather than the owner absent a special agreement.

## Decision

- The Court of Appeals reversed the judgments for the guarantors and ordered a new trial.
- The court held that the fire did not excuse Chambers’s duty to complete and deliver the schoolhouse.
- Because Chambers remained liable for nonperformance, the guarantors were not discharged and could be held liable on their undertaking.

## Legal Principles

- A party who makes a positive promise to complete a specified act must perform or respond in damages unless performance is rendered absolutely impossible in a legally recognized sense.
- In a building contract requiring completion and delivery of a finished structure, accidental destruction before completion and delivery does not, by itself, shift the loss to the owner or excuse the builder.
- Risk of loss before completion is allocated by the contract; absent a contrary provision, the contractor bears the risk of casualty prior to completion and delivery.
- Questions of title to the partially constructed structure are not controlling where the contractor’s obligation is an entire duty to deliver a completed building.
- A surety’s liability on a performance guaranty is coextensive with the principal’s obligation; if the principal is not excused, the surety is not discharged.

## Conclusion

The court held that a contractor who promised to complete and deliver a schoolhouse remained responsible when the unfinished structure was accidentally destroyed before acceptance, and the performance guarantors could not avoid liability on the theory that the casualty excused the contractor’s nonperformance.


Tompkins v. Dudley, 25 N.Y. 272 (N.Y. 1862)