§ 1363. Contract for a particular service. 32 The principle governing contracts for a particular piece of work are the same as those governing more general contracts of employment. If the work is done according to the contract 30 or if, though not completed, there is no saving to the contractor by being relieved from finishing it,31 the contractor is entitled to recover the contract price. So the plaintiff even though himself in default may recover where a division of performance, for which a separate price is promised, has been rendered; and wherever a payment has become due under a contract which is still in force, though the contract is not strictly divisible, a contractor who is not in default may recover the payment in full.33 Where there are no divisible payments due and unpaid, a contractor who is not in default should recover the total price promised less the cost of completing the work. 34 This will put him in as good a position as he would have been in had there been no breach. As it is sometimes easier to prove the total cost of a whole building or construction than the cost of completion, the rule is sometimes stated that the builder may recover the total contract price for the building less the total cost, plus the expense already incurred. 35 The latter statement is 826; Hopkins v. Gooderham, 10 Brit. Col. 250. In New York the decisions of the lower courts several times restricted the plaintiff's damages to the time of trial, and these decisions were warranted by a dictum in Everson v. Powers, 89 N. Y. 527, 528, but in a carefully considered decision, the Appellate Division of the Supreme Court adopted the logical rule. Davis v. Dodge, 126 N. Y. App. Div. 469, 110 N. Y. S. 787. 30 St. Louis &c. R. v. Hall, 186 Ala. 353; McGuire v. J. Neils Lumber Co., 97 Minn. 293, 107 N. W. 130. 31 Ware v. Cortland &c. Co., 192 N. Y. 439, 85 N. E. 666, 22 L. R. A. (N. S.) 272, 127 Am. St. 914; United Merchants &c. Co. v. American &c. Co., 71 N. Y. Misc. 457, 128 N. Y. S. 666. See also Phelps v. La Salle Hotel Co., 209 Ill. App. 430. 32 See supra, § 1030. 33 Crabtree v. Hagenbaugh, 25 Ill. 233, 79 Am. Dec. 324; Schillinger v. Bosch Ryan Grain Co., 145 Ia. 750, 122 N. W. 961; Bailey v. Fredonia Gas Co., 82 Kan. 746, 109 Pac. 411; Milske v. Steiner &c. Co., 103 Md. 235, 63 Atl. 471, 5 L. R. A. (N. S.) 1105, 115 Am. St. Rep. 354; Beatty v. Howe L. Co., 77 Minn. 272, 79 N. W. 1013; Perry v. Dickerson, 85 N. Y. 345, 39 Am. Rep. 663; Keel v. East Carolina, etc., Construction Co., 143 N. C. 429, 55 S. E. 826; Tilton v. Gates &c. Co., 140 Wis. 197, 121 N. W. 331. 34 Millen v. Gulesian, 229 Mass. 27, 118 N. E. 267; Shapiro v. Mollet, 168 N. Y. S. 723; Spearin v. United States, 51 Ct. Cl. 155. 35 Warner v. McLay, (Conn. (1918), 103 Atl. 113. See also United States v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168; Fox v. Harding, 7 Cush. 523. unobjectionable if it is remembered that it is merely a way of applying the rule, as previously stated, and not a device for giving the contractor on principles of quasi-contract the value of what he has done in addition to a contractual right to profit, 36 but not infrequently courts combine in a way that cannot be justified a right to prospective profits on the contract with a right to recover past expenditures. 37 The injured plaintiff should elect between rescission with restitution of the value of what he has given and an action on the contract for what he would have received. If the contractor himself has made some breach of contract but not such as to deprive him entirely of his right of recovery, the employer may take advantage of this by recoupment or counterclaim.38 These principles are applicable to all kinds of contracts for a particular piece of work; for instance, where a charter-party is broken by the failure of the charterer to load the vessel.39 Where the contractor fails to keep his agreement, the measure of damages is always the sum which will put his employer, the plaintiff, in as good a position as if the contract had been performed. Sometimes the sum will be based on the market price of the performance, which will generally be shown by the cost of getting the work done or completed by another person. If the contract price of the work is $10,000, and x = the cost of the work which has been done, and y = the cost of what remains to be done the proper formula for the plaintiff's recovery is $10,000-y, but the same result is obtained from the formula criticised in the text, of x + $10,000 -(x+y). But if the fair value of what has been done is not identical with the actual cost to the builder, it is important in applying the second formula to give x the same meaning in both places where it occurs. 37 See, e. g., Berry v. Huntington Assoc., 80 W. Va. 342, 93 S. E. 355. Walstrom v. Oliver-Watts Const. Co., 161 Ala. 608, 50 So. 46; Sheldon U. Leahy, 111 Mich. 29, 69 N. W. 76. "In Thebideau v. Cairns, 171 Fed. 233, the court said: "Scrutton on 40 Charter Parties, pp. 271, 272, states the English rule: 'In an action against charterer for not loading a cargo, the measure of damage is the amount of the freight which would have been earned under the charter, after deducting the expenses of earning it, and also any net profit the ship may have earned during the period of the charter. It is probable that any freight the ship might have earned by reasonable diligence after the final breach is to be deducted also.' See also Jordan v. Eaton, Fed. Cas. No. 7520; Watts v. Camors, 10 Fed. 145, affirmed in 115 U. S. 353, 6 S. C. Rep. 91, 29 L. Ed. 406." 40 Marcus v. Myers, 11 T. L. Rep. 327; Plunkett v. Meredith, 72 Ark. 3, 77 S. W. 600; World's Columbian Exp. v. Pasteur &c. Co., 82 Ill. App. 94; But consequential or special damages may also be recovered when they were foreseeable when the contract was made.41 § 1364. Seller of goods may recover price where property has passed. Where the property in goods which are the subject of a bargain has passed and the buyer wrongfully neglects or refuses to pay for them, the seller may recover the price,42 even though the buyer refuses to accept delivery. 43 Of course credit may have been given or the price may have been payable upon condition, and unless the term of credit has expired or the condition happened, no recovery can be had. In such a case the refusal of the buyer to pay would not be wrongful. Thus if the seller has contracted to deliver the goods he cannot recover the price without tender, though the title has passed; unless indeed the goods have been destroyed or tender otherwise has been excused.44 And where the seller accepts the goods back he cannot recover the price, 45 unless he revests himself with possession merely as bailee or lienholder. 46 Winona v. Jackson, 92 Minn. 453, 100 N. W. 368; National &c. Co. v. Hudson River &c. Co., 118 N. Y. App. D. 665, 103 N. Y. S. 641; Electric Sales Corp. v. Radford, 103 Wash. 130, 173 Pac. 942. 41 American-Hawaiian S. S. Co. v. Morse &c. Co., 169 Fed. 678; Haysler v. Owen, 61 Mo. 270; Blagen v. Thompson, 23 Ore. 239, 31 Pac. 647, 18 L. R. A. 315; Dixon-Woods Co. v. Phillips Glass Co., 169 Pa. 167, 32 Atl. 432; Hutchinson v. Mt. Vernon &c. Co., 49 Wash. 469, 95 Pac. 1023. 42 Scott v. England, 2 Dowl. & L. 520; Oleese v. Fruit, etc., Co., 211 III. 539, 71 N. E. 1084; Armstrong v. Turner, 49 Md. 589; Mitchell v. Le Clair, 165 Mass. 308, 43 N. E. 117; Meagher v. Cowing, 149 Mich. 416, 112 N. W. 1074; Wood v. Michaud, 63 Minn. 478, 65 N. W. 963; Doremus v. Howard, 23 N. J. L. (3 Zab.) 390; Hayden v. Demets, 53 N. Y. 426. It is unnecessary to multiply citations for so obvious a proposition. The Uniform Sales Act so provides in Sec. 63 (1). Decisions on this subsection are Urbansky v. Kutinsky, 86 Conn. 22, 84 Atl. 317; Home Pattern Co. v. W. W. Mertz Co., 86 Conn. 494, 86 Atl. 19, 88 Conn. 22, 90 Atl. 33. 48 Bates Street Shirt Co. v. Place, 76 N. H. 448, 84 Atl. 47; Storm v. Rosenthal, 156 N. Y. App. D. 544, 141 N. Y. S. 339; Seneca Co. v. Crenshaw, 89 S. C. 470, 71 S. E. 1081. 44 McGowin v. Dickson, 182 Ala. 161, 62 So. 685. 45 Friedman v. Pierce, 210 Mass. 419, 97 N. E. 82. 46 Home Pattern Co. v. W. W. Mertz Co., 86 Conn. 494, 86 Atl. 19, 88 Conn. 22, 90 Atl. 33. § 1365. Recovery of price allowed in some jurisdictions where property has not passed. The general rule of the English law 47 and of many of the United States 48 denies an action for the price unless the property has passed, and the reason for the rule is plain. As the seller still is owner of the goods, he ought not to be given also the price for them. His damage is the difference in value between what he now has, namely, the goods, and what he would have had if the defendant had not broken his contract, namely, the price. Nevertheless, a large number of States do not follow the English law in this matter. If the reason why the property in the goods has not passed to the buyer is because the buyer wrongfully refused to take title when offered to him, according to the weight of authority, perhaps, in this country, the seller may recover the full purchase price.49 The enactment of the Uniform Atkinson v. Bell, 8 B. & C. 277. See also Elliott v. Pybus, 10 Bing. 512. 49 See infra, § 1369. Habeler v. Rogers, 131 Fed. 43, 45, 65 C. C. A. 281; Kinkead v. Lynch, 132 Fed. 692; Kawin v. American Colortype Co., 243 Fed. 317, 156 C. C. A. 97; Magnes v. Sioux City Seed Co., 14 Colo. App. 219, 59 Pac. 879; Leeper v. Schroeder, 24 Colo. App. 164, 132 Pac. 701; Darby v. Hall, 3 Pennew. (Del.) 25; Robson v. Hale, 139 Ga. 753, 78 S. E. 177; Ames v. Moir, 130 Ill. 582, 22 N. E. 535; Trunkey v. Hedstrom, 131 Ill. 204, 209, 23 N. E. 587; Osgood v. Skinner, 211 Ill. 229, 71 N. E. 869; International Filter Co. v. Hartman, 141 Ill. App. 239; Dwiggins v. Clark, 94 Ind. 49, 48 Am. Rep. 140; Rastetter v. Reynolds, 160 Ind. 133, 66 N. E. 612; Moline Scale Co. . Beed, 52 Iowa, 307, 3 N. W. 96, 35 Am. Rep. 272; McCormick Machine Co. v. Markert, 107 Iowa, 340, 78 N. W. 33; Pate v. Ralston, 158 Ia. 411, 139 N. W. 906, 51 L. R. A. (N. S.) 735; Bell v. Offutt, 10 Bush (Ky.), 632, 639; Singer Mfg. Co. v. Cheney, 21 Ky. L. Rep. 550; 51 S. W. 813; Ozark Lumber Co. v. Chicago Lumber Co., 51 Mo. App. 555; St. Louis Range Co. v. Kline-Drummond Co., 120 Mo. App. 438, 96 S. W. 1040; Koenig v. Truscott Mfg. Co., 155 Mo. App. 685, 135 S. W. 514; Dehner v. Miller, 166 Mo. App. 504, 148 S. W. 953; Gordon v. Norris, 49 N. H. 376; Black River Lumber Co. v. Warner, 93 Mo. 374, 6 S. W. 210; Bement v. Smith, 15 Wend. 493; Dustan v. McAndrew, 44 N. Y. 72, 78; Atkinson v. Truesdell, 127 N. Y. 230, 27 N. E. 844; Van Brocklen v. Smeallie, 140 N. Y. 70, 35 N. E. 415; Cragin v. O'Connell, 50 N. Y. App. Div. 339, 169 N. Y. 573, 61 N. E. 1128; Gross v. Ajello, 132 N. Y. App. D. 25, 901, 116 N. Y. S. 380, 1137; Shawhan v. Van Nest, 25 Ohio St. 490, 18 Am. Rep. 313; Rhodes v. Mooney, 43 Ohio St. 421, 425, 4 N. E. 233; Haynes v. Brown, 18 Okla. 389, 89 Pac. 1124; Smith v. Wheeler, 7 Or. 49, 33 Am. Rep. 698; Daniels v. Morris, 65 Or. 289, 130 Pac. 397, 132 Pac. 958; Ballentine v. Robinson, 46 Pa. St. 177; Reynolds v. Callender, 19 Pa. Super. Ct. 610; Ogburn-Dalchau Lumber Co. v. Taylor (Tex. Sales Act in many States has extended the seller's right in jurisdictions of the first class and limited it in those of the latter class. 50 § 1366. Decisions under Statute of Frauds as basis of rule. Why the price should be recoverable is not always made clear. The earliest decision was in Bement v. Smith, 51 an action for the price of a sulky built to order by the plaintiff for the defendant and refused when tendered by the plaintiff, who thereupon said he would leave it with a third person and accordingly did so. In allowing the plaintiff to recover the full price the court relied on early cases under the Statute of Frauds.52 In these early cases it was held that such a contract as the one in suit was a contract not of sale but for work and labor. This being true, the court held as a consequence that though the plaintiff did not recover the price directly, as for goods sold, the amount of recovery should be, nevertheless, fixed by the price, since that was the agreed value of the labor. The only way in which this reasoning can be answered in a wholly satisfactory way is by confessing that the authorities, under the Statute of Frauds, which have held that a contract for goods to be made to order is not a contract of sale but a contract for work and labor are erroneous. This is now admitted in England, and the early decisions are overruled. 53 But in many of the United States it is still law that where goods are to be made to order, which are of a special kind differing from those ordinarily made by the seller, the contract is not one of sale, but for work and labor; 54 and the Uniform Sales Act has adopted this rule. 55 In other States it is held that in any case where the contract is for the sale of a commodity not in existence at the time, and which the seller is to manufacture or put in a condition to be delivered, the con Civ. App.), 126 S. W. 48; Leventhal 50 See infra, § 1367. The States which have passed this act are enumerated, supra, § 506. 51 15 Wend. 493 (1836). 52 Towers v. Osborne, 1 Strange, 506; Crookshank v. Burrell, 18 Johns. 58, 9 Am. Dec. 187. 63 Lee v. Griffin, 1 B. & S. 272. See supra, § 508. 54 See supra, § 509. |