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if he retains them after he knows that no future delivery is to be made, even though at the time the partial delivery was accepted he had no reason to suppose the contract was not to be fully performed.24 If then the contract is divisible and a price, therefore, due according to the terms of the contract for what has been delivered and accepted, there can be no doubt of the seller's right to recover the price fixed by the contract unless the buyer can and does return what he has received. 25 It may, however, be supposed that the contract was entire and that no part of the price was due until full performance by the seller. Even in such a case, if the buyer accepted a portion of the goods knowing that no more were to be delivered, there is no difficulty in finding a real contract to pay for them, as distinguished from a quasi-contractual obligation, since the partial delivery was in effect a new offer. 26 But if the deficient quantity of the goods was delivered under such circumstances that the buyer was not aware that full delivery would not be made, no new contract can be said to have been agreed to by the buyer. Here accordingly, if the seller recovers payment for what he has furnished, it must be on principles of quasi-contract. It has often been laid down that a contract will not be implied by the law in favor of one who is in default under an express contract, but owing to the injustice of allowing the seller to retain the benefit of goods without paying for them, by the weight of authority in the United States, the seller may recover the value of his goods. 27 But in New York by a long series of deci

24 Oxendale v. Wetherell, 9 B. & C. 386. In this case the plaintiff delivered 130 bushels of wheat and though he was bound to deliver 250 bushels and failed to deliver the residue, the court held that after the expiration of the time within which delivery should by the contract have been made, recovery could be had for the 130 bushels. Parke, J., said: "If the buyer retained the part delivered after the seller had failed in performing his contract, the latter may recover the value of the goods which he so delivered."

25 Bowker v. Hoyt, 18 Pick. 555.

The court held in this case that retention of the goods after knowledge of the seller's default made the buyer liable for the contract price; but the buyer, it was said, might recoup the damages that he suffered from the seller's, failure completely to fulfil his contract. As to the question of the seller's liability where incomplete performance has been accepted, see supra, §§ 700 et seq.

26 See Georgia Pine Co. v. Central Lumber Co., 6 Ala. App. 211, 60 So. 512.

27 Richards v. Shaw, 67 Ill. 222; Holden Mill v. Westervelt, 67 Me.

sions relief has been denied.28 The New York view has been accepted in a few other States, 29 some of which at least would probably allow recovery if the seller's default was not wilful or morally culpable. The measure of damages in such an action is not necessarily the contract price even if the contract fixes a price by number, weight, or measure. If the buyer retained the goods, having it in his power to redeliver them after he knew that the seller was going to make default in delivering the whole amount, it seems just that the buyer should pay the contract price. This result seems supported by the decisions which hold the buyer liable under such circumstances. It is commonly said that the retention operates as a severance of the contract. 30 The buyer, however, may in good faith have dealt with the goods in such a way as to make it impossible for him to return them, and yet the value of the portion received may not be so large a proportion of the total price as the goods are of the total amount of goods which should have been delivered. As the buyer's obligation is imposed by law, the extent of it should be restricted to the benefit which the defendant has received. The seller, being a wrongdoer in failing to deliver the whole amount, can certainly claim no more than this; and so it is provided in the Uniform Sales Act.31

446; Viles v. Kennebec Lumber Co., (Me. 1919), 106 Atl. 431; Rodman v. Guilford, 112 Mass. 405; Hedden v. Roberts, 134 Mass. 38, 45 Am. Rep. 276; Brown v. Morris, 83 N. Car. 257; Clark v. Moore, 3 Mich. 55; Shaw v. Badger, 12 S. & R. 275. See also Hartsell v. Turner, 196 Ala. 299, 71 So. 658; McCurry v. Purgason, 170 N. Car. 463, 87 S. E. 244, Ann. Cas. 1918 A. 907.

Champlin v. Rowley, 13 Wend. 258, 18 Wend. 187; Mead v. Degolyer, 16 Wend. 632; Baker v. Higgins, 21 N. Y. 397; Catlin v. Tobias, 26 N. Y. 217, 84 Am. Dec. 183; Kein v. Tupper, 52 N. Y. 550; Nightingale v. Eiseman, 121 N. Y. 288, 24 N. E. 475; Kelso v. Ellis, 224 N. Y. 528, 121 N. E. 364. If there are any facts tending to show waiver or prevention of full performance, the New York court is quick to seize upon these facts as a

ground of liability. Avery v. Willson, 81 N. Y. 341, 37 Am. Rep. 503; Brady v. Cassidy, 145 N. Y. 171, 39 N. E. 814.

29 Haslack v. Mayers, 26 N. J. L. 284; Witherow v. Witherow, 16 Ohio St. 238; Petersburg Fire Brick Co. v. American Clay Mach. Co., 89 Ohio St. 365, 106 N. E. 33, L. R. A. 1915 B. 536. See also Miller v. Mantik, 116 Md. 279, 281, 81 Atl. 797; Mark v. Stuart-Howland Co., 226 Mass. 35, 43, 115 N. E. 42. In Maryland, Massachusetts, New York, New Jersey and Ohio the Uniform Sales Act is now in force, and in any future dealing with the subject, the effect of the section quoted, infra, n. 31 should be taken into consideration.

30 See cases cited supra, n. 27. 31 Sec. 44. Delivery of wrong quantity.-(1) Where the seller delivers

§ 1475. Recovery for labor and materials by party in default. The element of forfeiture in wholly denying recovery to a plaintiff who is materially in default is most strikingly exemplified in building contracts. It has already been seen 32 how, under the name of substantial performance, many courts have gone beyond the usual principles governing contracts in allowing relief in an action on the contract. But many cases of hardship cannot be brought within the doctrine of substantial performance, even if it is liberally construed; and the weight of authority strongly supports the statement that a builder whose breach of contract is merely negligent, can recover the value of his work less the damages caused by his default; 33 but that

to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts or retains the goods so delivered, knowing that the seller is not going to perform the contract in full, he must pay for them at the contract rate. If, however, the buyer has used or disposed of the goods delivered before he knows that the seller is not going to perform his contract in full, the buyer shall not be liable for more than the fair value to him of the goods so received.

(2) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate.

(3) Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole,

(4) The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties.

This section is borrowed from section 30 of the English statute with some changes. In subsection (1), the last sentence is not contained in the English act, nor are the words in the first sentence "knowing that the seller is not going to perform the contract in full." 12 Supra, § 805.

23 Dermott v. Jones, 23 How. 220, 16 L. Ed. 442; Thomas v. Ellis, 4 Ala. 108; Davis v. Badders, 95 Ala. 348, 10 So. 422; Bertrand v. Byrd, 5 Ark. 651; Katz v. Bedford, 77 Cal. 319, 19 Pac. 523, 1 L. R. A. 826; Bush v. Finucane, 8 Colo. 192, 6 Pac. 514; Pinches v. Swedish Church, 55 Conn. 183, 10 Atl. 264; Everroad v. Schwartzkopf, 123 Ind. 35, 23 N. E. 969; Ætna Iron, etc., Works v. Kossuth County, 79 Ia. 40, 44 N. W. 215; Keys v. Garben, 149 Ia. 394, 128 N. W. 337; White v. Oliver, 36 Me. 92; Cormier v. Brock, 212 Mass. 292, 98 N. E. 1038; Hooper v. Cuneo, 227 Mass. 37, 116 N. E. 237; Sherman v. Buffinton, 228 Mass. 139, 117 N. E. 33; Howell v. Medler, 41 Mich. 641, 2 N. W. 911; Eaton v. Gladwell, 121 Mich. 444, 80 N. W. 292; Germain v. Union School Dist., 158 Mich. 214, 122 N. W. 524, 123 N. W. 798; Yeats v. Ballentine, 56 Mo. 530; Decker v. School Dist., 101 Mo. App. 115, 74 S. W. 390; McMillan v. Malloy, 10 Neb. 228, 4 N. W. 1004, 35 Am. Rep. 471;

one who has wilfully abandoned or broken his contract cannot recover. 34 The classical English doctrine, it is true, has denied recovery altogether where there has been a material breach even though it was due to negligence rather than wilfulness;35 and a few decisions in the United States follow this rule, where the builder has not substantially performed. 36 But the English court has itself abandoned it, and now holds, 37 that where a builder has supplied work and labor for the erection or repair of a house under a lump sum contract, but has departed from the terms of the contract, he is entitled to recover for his services, unless (1) the work that he has done has been of no benefit to the owner; (2) the work he has done is entirely different from the work which he has contracted to do; or (3) he has abandoned the work and left it unfinished. It seems probable that

Danforth v. Freeman, 69 N. H. 466, 43 Atl. 621; Eckes v. Luce, (Okl. 1918), 173 Pac. 219; Woodford v. Kelley, 18 S. D. 615, 101 N. W. 1069; Gove v. Island City, etc., Co., 19 Or. 363, 24 Pac. 521; Smith v. Packard, 94 Va. 730, 27 S. E. 586.

Sumpter v. Hedges, [1898] 1 Q. B. 673; Maxwell & Delehomme v. Moore, 163 Ala. 490, 50 So. 882 (cf. Hartsell . Turner, 196 Ala. 299, 71 So. 658); Fish v. Correll, 4 Cal. App. 521, 88 Pac. 489; McGonigle v. Klein, 6 Colo. App. 306, 40 Pac. 465; Gill v. Vogler, 52 Md. 663; Oldewurtel v. Bevan, 117 Md. 645, 84 Atl. 66; Bowen v. Kimbell, 203 Mass. 364, 89 N. E. 542, 133 Am. St. Rep. 302; Elliott v. Caldwell, 43 Minn. 357, 45 N. W. 845, 9 L. R. A. 52; Johnson . Fehsefeldt, 106 Minn. 202, 118 N. W. 797, 20 L. R. A. (N. S.) 1069; Wooten #. Read, 2 Smedes & M. (10 Miss.) 585; Robinson v. De Long (Miss.), 79 So. 95; Stroeh . McClintock, 128 Mo. App. 368, 107 S. W. 416; Macpherson v. Mackay, 91 N. J. L. 473, 103 Atl. 36; Jennings v. Camp, 13 Johns. 94, 7 Am. Dec. 367; Cunningham v. Jones, 20 N. Y. 486; Spence v. Ham, 163 N. Y. 220, 57 N. E. 412, 51 L. R. A. 238; Norton v. U. S. Wood Co., 89 App.

Div. 237, 85 N. Y. S. 886; Winstead v. Reid, Busb. L. (44 N. C.) 76, 57 Am. Dec. 571; Schmidt v. North Yakima, 12 Wash. 121, 40 Pac. 790; Malbon v. Birney, 11 Wis. 107; Manitowac Steam, etc., Works v. Manitowac Glue Works, 120 Wis. 1, 97 N. W. 515.

35 Sinclair v. Bowles, 9 Barn. & Cr. 92; Munro v. Butt, 8 El. & Bl. 738.

36 Serber v. McLaughlin, 97 Ill. App. 104; Simpson Cons. Co. v. Stenberg, 124 Ill. App. 322; Morford v. Mastin, 6 T. B. Mon. 609, 17 Am. Dec. 168; Presbyterian Church v. Hoopes, etc., Co., 66 Md. 598, 8 Atl. 752; Meyer v. Frenkil, 113 Md. 45, 77 Atl. 769 (see also Oldewurtel v. Bevan, 117 Md. 645, 84 Atl. 66); Riddell v. Peck-Williamson, etc., Co., 27 Mont. 44, 69 Pac. 241; Feeney v. Bardsley, 66 N. J. L. 239, 49 Atl. 443; Pullman v. Corning, 9 N. Y. 93; Smith v. Brady, 17 N. Y. 173, 72 Am. Dec. 442; Steel Storage &c. Co. v. Stock, 225 N. Y. 173, 121 N. E. 786. It is interesting to observe that New York which follows the strictest theory here is the typically lenient State in allowing recovery on the contract.

37 H. Dakin & Co., Ltd., v. Lee, [1916] 1 K. B. 566.

the tendency of decisions will favor a builder who has not unjustifiably abandoned his contract or been guilty of conscious moral fault in its performance.3 38

§ 1476. Recovery of money paid by party in default.

Where money has been paid under a contract by a party who subsequently makes default in the performance due from him the question of his right to recover so much of the payment which he has made as exceeds the damage suffered by the other party, is often complicated by a circumstance not present where the part performance is property or services, namely, the creation of a relation in essence the same as that of the parties to a purchase money mortgage. This is true where the part payment is made by one who agrees to buy land or goods and who is put in possession. Such cases have been previously treated.39 It is true that the special rules applicable to mortgages have not always been applied to such cases, but they should be, and to some extent they are. The question ceases to be governed by the principles which control the right of a party in default to recover for goods or services given in part performance. But one who pays money under a contract is not always in the position of a mortgagor, and in such a case it might seem easier to grant relief to the party in default than where he has given property or services; for the extent of the benefit which a defendant has derived from a partial payment of money is not as doubtful as where property or services have been contributed. Recovery has been allowed in some cases, 40 but it would probably be more commonly denied,11 and no em

38 How far acceptance of the builder's work involves a liability to pay for it, which would not otherwise have existed is considered, supra, § 724.

39 For the rights of one who has thus contracted to buy land, see supra, § 791. For the rights of a conditional buyer of goods, supra, §§ 734 et seq.

40 Cherry Valley Iron Works v. Florence Iron Co., 64 Fed. 569, 12 C. C. A. 306 (contract to buy ore); Michigan Yacht Co. v. Busch, 143 Fed. 929, 75 C. C. A. 109 (contract to buy a

yacht); Hickock v. Hoyt, 33 Conn. 553 (contract to buy wire); Sabas v. Gregory, 91 Conn. 26, 98 Atl. 293 (contract to buy an automobile).

41 This seems probable from the cases concerning land, § 791, and conditional sales of chattels, § 734. See also Bernzweig v. Hyman Levin Co., (Supr. Ct. App. Term), 172 N. Y. S. 437. In the land cases the essential relation of mortgagee and mortgagor does not always exist, and even where it does frequently the principles of mortgage

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