and not on the special contract, 20 but the measure of damages is what he ought to have received-not the value of what he has given.21 If, however, the plaintiff has only partly performed and has been excused from further performance by prevention or by the repudiation or abandonment of the contract by the defendant, he may recover, either in England or America, the value of the services rendered,22 though such a remedy is no more necessary than where he has fully performed, since in both cases alike the plaintiff has an effectual remedy in an action on the contract for damages. In some jurisdictions, if a price or rate of compensation is fixed by the contract, that is 20 Chitty, Pleading (7th ed.), i. 358; Atkinson v. Bell, 8 B. & C. 277, 283; Gandell v. Pontigny, 4 Camp. 375, s. c., 1 Stark. 198; Savage v. Canning, Ir. R. 1 C. L. 434; Wardrop v. Dublin, etc., Co., Ir. R. 8 C. L. 295; Shepard v. Mills, 173 III. 223, 50 N. E. 709; Peterson v. Pusey, 237 Ill. 204, 86 N. E. 692; Shilling v. Templeton, 66 Ind. 585; Rogers v. Brown, 103 Me. 478, 70 Atl. 206; Southern Bldg. Assoc. v. Price, 88 Md. 155, 41 Atl. 53, 42 L. R. A. 206; Nicol v. Fitch, 115 Mich. 15, 72 N. W. 988, 69 Am. St. Rep. 542; Morin v. Robarge, 132 Mich. 337, 93 N. W. 886; Reifschneider v. Beck, 148 Mo. App. 725, 129 S. W. 232; Hosley v. Black, 28 N. Y. 438; Ludwig v. Pusey & Jones Co., 143 N. Y. App. D. 290, 128 N. Y. S. 72; Hollander v. Kaufmann, 172 N. Y. App. D. 218, 158 N. Y. S. 195. 21 Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762; Pusey & Jones Co. v. Dodge, 3 Penn. (Del.) 63, 49 Atl. 248; Barnett v. Sweringen, 77 Mo. App. 64, 71, and cases cited; Porter v. Dunn, 61 Hun, 310, 16 N. Y. S. 77 (S. C., 131 N. Y. 314, 30 N. E. 122). And see cases in the preceding note. 22 Mayor v. Pyne, 3 Bing. 285; Planché v. Colburn, 8 Bing. 14; Clay v. Yates, 1 H. & N. 73; Bartholomew v. Marwick, 15 C. B. (N. S.) 711; M'Connell v. Kilgallen, 2 L. R. Ir. 119; Chicago v. Tilley, 103 U. S. 146, 26 L. Ed. 371; American-Hawaiian, etc., Co. v. Butler, 165 Cal. 497, 133 Pac. 280, Ann. Cas. 1916 C. 44; Hoyt v. Pomeroy, 87 Conn. 41, 86 Atl. 755; Ottoway v. Milroy, 144 Ia. 631, 123 N. W. 467; Jenson v. Lee, 67 Kans. 539, 73 Pac. 72; North v. Mallory, 94 Md. 305, 51 Atl. 89; Posner v. Seder, 184 Mass. 331, 68 N. E. 335; Wheelock v. Zevitas, 229 Mass. 167, 118 N. E. 279; Midland Operating Co. v. Miller, 197 Mich. 567, 164 N. W. 443; Moore v. Board, 215 Mo. 705, 115 S. W. 6; Franklin Motor Car Co. v. Kast, 171 Mo. App. 309, 157 S. W. 841; Cook v. Gallatin R. Co., 28 Mont. 509, 73 Pac. 131; Thompson v. Gaffey, 52 Neb. 317, 72 N. W. 314; Stephen v. Camden, etc., Soap Co., 75 N. J. L. 648, 68 Atl. 69; Person v. Stoll, 72 N. Y. App. D. 141, 76 N. Y. S. 324, 174 N. Y. 548, 67 N. E. 1089; Atlantic, etc., Co. v. Woodmere Realty Co., 156 N. Y. App. D. 351, 142 N. Y. S. 953; Borup v. VonKokeritz, 162 N. Y. App. D. 394, 147 N. Y. S. 832; McCurry v. Purgason, 170 N. C. 463, 87 S. E. 244, Ann. Cas. 1918 A. 907; Easton v. Quackenbush, 86 Or. 374, 168 Pac. 631; Franconi v. Graham (Or.), 174 Pac. 548; Boville v. Dalton Paper Mills, 86 Vt. 305, 85 Atl. 623. But the right was denied as recently as 1802 in Hulle v. Heightman, 2 East, 145. See also cases collected, infra, §§ 1475, 1477. made the conclusive test of the value of the services rendered. 23 More frequently, however, the plaintiff is allowed to recover the real value of the services though in excess of the contract price.24 The latter rule seems more in accordance with the theory on which the right of action must be based-that the contract is treated as rescinded and the plaintiff restored to his original position as nearly as possible. § 1460. Anything received by plaintiff must be returned. If a contract has been partly performed by the party in default, the other party, at least if he has received any benefit from such part performance, cannot ordinarily rescind the contract according to the English law. Even though he return what he has received, it is said the parties cannot be restored to their original position, because he has had the temporary enjoyment of the property. In the leading case of Hunt v. Silk, 25 the plaintiff, who sought to recover money he had paid under an agreement for a lease, because of the defendant's failure to make repairs as agreed, had had possession of the premises a few days. This was held fatal. Lord Ellenborough said: "If the plaintiff might occupy the premises two days beyond 23 Georgia Pine Lumber Co. v. Central Lumber Co., 6 Ala. App. 211, 60 So. 512; Chicago v. Sexton, 115 Ill. 230, 2 N. E. 263; Keeler v. Clifford, 165 Ill. 544, 548, 46 N. E. 248; Chicago Training School v. Davies, 64 Ill. App. 503; Rice v. Partello, 88 Ill. App. 52; Western v. Sharp, 14 B. Mon. 177; Doolittle v. McCullough, 12 Ohio St. 360 (much qualified by Wellston Coal Co. v. Franklin Paper Co., 57 Ohio St. 182, 48 N. W. 888); Noyes v. Pugin, 2 Wash. 653, 27 Pac. 548. See also Eastern Arkansas Fence Co. v. Tanner, 67 Ark. 156, 53 S. W. 886. 24 United States v. Behan, 110 U. S. 338, 345, 28 L. Ed. 168, 4 Sup. Ct. 81; Clover v. Gottlieb, 50 La. Ann. 568, 23 So. 459; Rodemer v. Hazlehurst, 9 Gill, 288; Fitzgerald v. Allen, 128 Mass. 232; Forbes v. Appleyard, 181 Mass. 354, 359, 63 N. E. 894; Kearney v. Doyle, 22 Mich. 294; Hemminger v. Western Assurance Co., 95 Mich. 355, 54 N. W. 949; McCullough v. Baker, 47 Mo. 401; Ehrlich v. Ætna L. I. Co., 88 Mo. 249, 257; Clark v. Manchester, 51 N. H. 594; Clark v. Mayor, 4 N. Y. 338, 53 Am. Dec. 379; Wellston Coal Co. v. Franklin Paper Co., 57 Ohio St. 182, 48 N. E. 888; Philadelphia v. Tripple, 230 Pa. 480, 79 Atl. 703; Derby v. Johnson, 21 Vt. 17; Chamberlin v. Scott, 33 Vt. 80. But in these jurisdictions the prices fixed in the contract are evidence (though not conclusive) of the value of the work. Monarch v. Board of School Fund, 49 La. Ann. 991, 22 So. 259; Walsh v. Jenvey, 85 Md. 240, 36 Atl. 817; Fitzgerald v. Allen, 128 Mass. 232, 234; Eakright v. Torrent, 105 Mich. 294, 63 N. W. 293. 25 5 East, 449. the time when the repairs were to have been done and the lease executed and yet rescind the contract, why might he not rescind it after a twelvemonth on the same account?" Hunt v. Silk has been consistently followed. 26 It is in accordance with this rule that a buyer is not allowed to rescind a contract for breach of warranty,27 though there is the additional reason in the case of a warranty that it is said to be a collateral contract. In the United States the law is more liberal. It is universally agreed that rescission is not allowable by self-help or in an action at law unless the party seeking to rescind can and does first restore or offer to restore anything he has received under the contract, 28 but the construction of this rule is far less severe than in England. Though it is frequently said that "A contract cannot ordinarily be rescinded unless both parties can be reinstated in their original situation in respect of their contract, and if one party have already received benefit from the contract he cannot rescind it wholly, but is put to his action for damages," " or the like, yet some courts have gone very far in allowing rescission upon restitution in specie of what had been given in spite of benefits derived from temporary possession.30 29 "Beed v. Blandford, 2 Y. & J. 278; Street v. Blay, 2 B. & Ad. 456, 464; Blackburn v. Smith, 2 Ex. 783. See also Heilbutt v. Hickson, L. R. 7 C. P. 438, 451. Street v. Blay, 2 B. & Ad. 456; Gompertz v. Denton, 1 C. & M. 207; Poulton v. Lattimore, 9 B. & C. 259; Parsons v. Sexton, 4 C. B. 899; Dawson 5. Collis, 10 C. B. 523. So provided in the Indian Contract Act, sect. 117. *Kauffman v. Raeder, 108 Fed; 171, 47 C. C. A. 278, 54 L. R. A. 247, Los Angeles Traction Co. v. Wilshire, 135 Cal. 654, 67 Pac. 1086; Naugle v. Yerkes, 187 Ill. 358, 58 N. E. 310; Summerall v. Graham, 62 Ga. 729; Harden . Lang, 110 Ga. 392, 36 S. E. 100; Clover v. Gottlieb, 50 La. Ann. 568, 23 So. 459; Pochè . New Orleans Co., 52 La. Ann. 1287, 27 So. 797; Morrow v. Moore, 98 Me. 373, 57 Atl. 81, 99 Am. St. Rep. 410; Miner v. Bradley, 22 Pick. 457; Clark v. Baker, 5 Met. 452; Snow v. Alley, 144 Mass. 546, 11 N. E. 764, 59 Am. Rep. 119; De Montague v. Bacharach, 181 Mass. 256, 63 N. E. 435 Owen v. Button, 210 Mass. 219, 96 N. E. 333; Gullich v. Alford, 61 Miss. 224; Doughten v. Camden Assoc., 41 N. J. Eq. 556, 7 Atl. 479; Gale v. Nixon, 6 Cow. 445; North Dak. Civ. Code, § 3934; Brown v. Witter, 10 Ohio, 142; Oklahoma Stat., § 686; Code of Virginia, § 3712; Potter v. Taggart, 54 Wis. 395, 11 N. W. 678, 50 Am. Dec. 674, n.; 74 Am. Dec. 661, n. 29 Story, Contracts (5th ed.), § 1337. See also Peck Co. v. Stratton, 95 Fed. 741; Moore v. Bare, 11 Ia. 198; Burge v. Cedar Rapids, etc., R. R. Co., 32 Ia. 101; Stevenson v. Polk, 71 Ia. 278, 32 N. W. 340; Handforth v. Jackson, 150 Mass. 149, 22 N. E. 634; Spencer v. St. Clair, 57 N. H. 9, 13; Fay v. Oliver, 20 Vt. 118, 49 Am. Dec. 764. 30 In Ankeny v. Clark, 148 U. S. 345, It has even been said by the Supreme Court of the United States 31 in speaking of a partly performed building contract: "The general rule, that a contract for the complete construction of a building for an entire price, payable in instalments as the work progresses, is an entire contract, and that a wilful refusal by the contractor to complete the building entitles the owner to a return of the instalments paid, has been declared by the state courts in a number of cases." 32 In the case in question, however, and in all the cases cited by the court, the par 37 L. Ed. 475, 13 Sup. Ct. 617, the plaintiff was allowed to recover the full value of wheat delivered by him to the defendant, on surrendering possession of land which the defendant had contracted, but failed to convey, though the plaintiff had had possession of the land for over four years, and this possession was admitted to be worth over two thousand dollars. The cases cited by the court in support of its position merely establish the point that if the suit had been reversed the vendor could not have recovered for the use and occupation of the land-a different matter. Contrary to Ankeny v. Clark, but not cited in that case, are Axtel v. Chase, 77 Ind. 74, 83 Ind. 546, 554; Fay v. Oliver, 20 Vt. 118, 49 Am. Dec. 764. Cf., however, Nothe v. Nomer, 54 Conn. 326, 8 Atl. 134. In Rackemann v. Riverbank Imp. Co., 167 Mass. 1, 44 N. E. 990, 57 Am. St. 427, possession by the plaintiff of land for nearly a year was held no bar to rescission. In Campbell Printing Press, etc., Co. v. Marsh, 20 Col. 22, 36 Pac. 799, it was held that one who had received and used a printing press might return it and rescind his contract on the failure of the seller to furnish another piece of machinery included in the bargain, though the market value of the press was impaired by the fact that it had been used. Cf. Aultman & Taylor Co. v. Mead, 109 Ky. 583, 60 S. W. 294. In Benson v. Cowell, 52 Ia. 137, 2 N. W. 1035, the plaintiff was allowed to rescind on returning money of which he had had the use, without being required to pay interest. In Barrows v. Harter, 165 Cal. 45, 130 Pac. 1050, it was held that while under Civ. Code, §§ 1691, 3408, a purchaser upon a rescission by the vendor is ordinarily entitled to a return of payments, as well as allowances for improvements, he was not so entitled where the value of the use of the premises exceeded the payments. 31 United States v. United States Fidelity Co., 236 U. S. 512, 525, 59 L. Ed. 696, 35 Sup. Ct. 298. 32 Citing School Trustees v. Bennett, 27 N. J. L. 513, 517, 72 Am. Dec. 373, 374; Tompkins v. Dudley, 25 N. Y. 272, 82 Am. Dec. 349; Bartlett v. Bisbey, 27 Tex. Civ. App. 405, 408, 66 S. W. Rep. 70, and cases cited. The Supreme Court added, "This court, in a case that has been often cited and followed, where a government contractor, without fault of his own, was prevented from performing his contract owing to the abandonment of the project, held that he was entitled to recover from the United States what he had expended towards performance (less the value of his materials on hand), although he failed to establish that there would have been any profits. United States v. Behan, 110 U. S. 338, 344, 28 L. Ed. 168, 4 Sup. Ct. 81. And see Holt v. United Security Life Ins. Co., 76 N. J. L. 585, 597, 72 Atl. 301, 21 L. R. A. (N. S.) 691." tially completed building had been totally destroyed, and the owner's damages in an action on the contract would have been the same as if there had never been any part performance by the builder.33 It can hardly be thought a true exception to the rule that benefits received must be restored, that in many of the United States, rescission is allowed for breach of warranty,34 for the temporary possession of the buyer seems negligible if the goods are still uninjured when tendered back, and it is only a formal exception that "a return may be made after the institution of the action in instances where the thing returned is as between the parties a mere promise, or not property, as for instance a check or note of one of the parties." 35 The most desirable disposition of many cases where the plaintiff cannot, without any fault on his part, return all he has received, would be to allow the plaintiff to recover subject to a deduction for what he has received and cannot return, and some authorities seem to support such a solution of the problem.36 If the aid of equity is invoked for the rescission or cancellation of a contract there seems no necessity for a preliminary offer to restore what the plaintiff has received, since by its decree equity can impose the condition precedent of restitution, but such an offer seems requisite in many States. 37 § 1461. Rescission for breach of warranty. Recoupment and an action or counterclaim for damages are "The cases are instructive, however, on the question whether an owner to whose property valuable building materials have been attached as part of a structure can be regarded as having received a benefit if the materials are destroyed before the structure is finished. See infra, § 1975. * See the following sections. * Owen v. Button, 210 Mass. 219, 223, 96 N. E. 333; citing Morse v. Woodworth, 155 Mass. 233, 249, 27 N. E. 1010, 29 N. E. 525; Illustrated Card &c. Co. v. Dolan, 208 Mass. 53, 55, 94 N. E. 299. * Wilson v. Burks, 71 Ga. 862; Todd . Leach, 100 Ga. 227, 28 S. E. 43; Putnam v. Bolster, 216 Mass. 367, 103 N. E. 942; Todd v. McLaughlin, 125 In Higby v. Whittaker, 8 Ohio, 198, and Hood v. People's, etc., Assoc., 8 Tex. Civ. App. 385, the vendor was allowed to recover land for which he had received part payment without returning what he had received, on the ground that the possession which the vendee had enjoyed equalled in value this part payment. See also McDaniel v. Gray, 69 Ga. 433; Travelers' Ins. Co. v. Redfield, 6 Col. App. 190, 40 Pac. 195. 37 Sec. 6 Pomeroy's Eq. Jur. § 678. |