Notes - School Trustees of Trenton v. Bennett

NOTE

1. For the court's use of Paradine v. Jane, see Note 6 following Paradine, supra p. 911.

2. The factual situation involved in the Bennett case came into litigation recurrently through most of the nineteenth century. See Adams v. Nichols, 19 Pick 275 (Mass. 1837); School District No. 1. v. Dauchy, 25 Conn. 530 (1857); Stees v. Leonard, 20 Minn. 494 (20 Gilfillan 448) (1874) (the two reported versions of the Stees case, it should be noted, are not identical). In all these cases the principle that commended itself to the New Jersey court in Bennett was stated and restated with varying degrees of emphasis and eloquence. The formulation by Young, J., in Stees v. Leonard enjoyed a considerable vogue:

If a man bind himself, by a positive, express contract, to do an act in itself possible, he must perform his engagement, unless prevented by the act of God, the law, or the other party to the contract. No hardship, no unforeseen hindrance, no difficulty short of absolute impossibility, will excuse him from doing what he has expressly agreed to do. This doctrine may sometimes seem to bear heavily upon contractors, but in such cases, the hardship is attributable, not to the law, but to the contractor himself, who has improvidently assumed an absolute, when he might have undertaken only a qualified, liability. The law does no more than enforce the contract as the parties themselves have made it.

20 Minn. at 503.

3. In all the cases cited in Note 2, it appears that the recovery sought and awarded was the return of progress payments which the owner had made to the contractor in course of construction before the destruction of the building. (On the recovery in Stees v. Leonard, see L. Fuller & R. Braucher, Basic Contract Law 559 (1964)). What damages were awarded in the Bennett case? What damages are normally recoverable by an aggrieved party when the other party, without excuse, fails to complete work that it has undertaken? On the normal damage rule, see United States v. Behan, infra p. 1174, and the materials that follow it in Chapter 10, Section 3.

4. On the course of absolute liability theory in England during the nineteenth century, see Hall v. Wright, supra p. 916, and the Note following that case.