phasis placed upon the reason why the plaintiff had made default, whether it involved wilfulness or merely misfortunes as unexpected as those of Antonio in the Merchant of Venice.

§ 1477. Recovery by an employee in default.

Decisions have gone farther in allowing an employee who has performed a part of his contract of employment, for which no divisible portion of compensation is provided by the contract, 42 to recover reasonable compensation though his failure to render further performance was due to his wilful abandonment of the contract or to his discharge for good cause. In an early and leading New Hampshire decision 43 an employee who had wilfully abandoned his contract before substantial performance had been rendered, was thus allowed to recover on a quantum meruit; and this decision has been followed in a number of American jurisdictions.44 But in England and a majority of American States it is held that such an employee can recover nothing. 45 Jurisdictions which allow recovery to one who has

law have not been applied. The cases where one insured by a policy has paid the premium and subsequently during the term has broken a warranty, and thereafter has been denied recovery of any portion of the premium, supra, 757, may also be considered.

42 As to recovery on the contract, see supra, § 1028.

43 Britton v. Turner, 6 N. H. 481, 26 Am. Dec. 713.

44 Ricks v. Yates, 5 Ind. 115; Pixler v. Nichols, 8 Ia. 106, 74 Am. Dec. 298; Byerlee v. Mendel, 39 Ia. 382; Porter v. Whitlock, 142 Ia. 66, 120 N. W. 649; Barnes v. Bradford (Ia. 1917), 165 N. W. 306; Duncan v. Baker, 21 Kan. 99; Asher v. Tomlinson, 22 Ky. L. Rep. 1494, 60 S. W. 714; Fuller v. Rice, 52 Mich. 435, 18 N. W. 204; Williams v. Crane, 153 Mich. 89, 116 N. W. 554; Parcell v. McComber, 11 Neb. 209, 7 N. W. 529, 38 Am. Rep. 366; Murphy v. Sampson, 2 Neb. (Unof.) 297, 96 N. W. 494; Laton v. King, 19 N. H. 280; Clough v. Clough, 26 N. H. 24; Bedow

v. Tonkin, 5 S. Dak. 432, 59 N. W. 222; Stolle v. Stuart, 21 S. Dak. 643, 114 N. W. 1007; Carroll v. Welch, 26 Tex. 147. See also Chamblee v. Baker, 95 N. C. 98; McCurry v. Purgason, 170 N. Car. 463, 87 S. E. 244, Ann. Cas. 1918 A. 907.

45 Huttman v. Boulnois, 2 C. & P. 510; Saunders v. Whittle, 33 L. T. (N. S.) 816; Gregson v. Watson, 34 L. T. (N. S.) 143; Mallory v. Mackaye, 92 Fed. 749, 34 C. C. A. 653; Carbon Hill Coal Co. v. Cunningham, 153 Ala. 573, 44 So. 1016 (cf. Hartsell v. Turner, 196 Ala. 299, 71 So. 658); Latham v. Barwick, 87 Ark. 328, 113 S. W: 646; Lyden v. Spohn-Patrick Co., 155 Cal. 177, 100 Pac. 236; Ransome Const. Co. v. Von Schroeder, 34 Cal. App. 475, 167 Pac. 1144; Henderson v. Stiles, 14 Ga. 135 (but see Hill v. Balkcom, 79 Ga. 444, 5 S. E. 200); Hansell v. Erickson, 28 Ill. 257; Hofstetter v. Gash, 104 Ill. App. 455; Callahan v. Stafford, 18 La. Ann. 556; Miller v. Goddard, 34 Me. 102, 56 Am.

wilfully abandoned his employment will naturally also allow recovery where he has been discharged for any cause not involving dishonesty or intentional injury of the employer; for to give other cause even wilfully for discharge can hardly be worse than wilful abandonment; but the converse is not equally true. An employee may give cause for discharge while honestly endeavoring to fulfil the contract. Consequently recovery has sometimes been allowed to a discharged employee in jurisdictions which would deny it to one who had been guilty of wilful abandonment.46 In other jurisdictions it is held broadly that a rightfully discharged employee cannot recover.47

The test of honest purpose to fulfil the obligations of the contract which has been so generally applied in building contracts seems to furnish the best rule also for contracts of employment. Under such a test either abandonment of the contract or rightful discharge might not bar recovery for services actually rendered if the employee had acted in good faith though under a mistaken view of his rights. It should be observed in this connection that it is generally recognized law that if an employee who is a fiduciary is guilty of disloyalty to his employer, he forfeits all right in any form of action, to compensation for the services during the performance of which the disloyalty occurred. 48 This principle will not, however, preclude recovery for services in another and separate transaction; 49 nor presumably for a divisible sum due prior to the lack of fidelity for services rendered, although all the services prior and subsequent were part of a continuous transaction.

§ 1478. Measure of recovery in actions for restitution.

If property or services given by the plaintiff to a defendant could be restored in specie as in the case of land, or had necessarily always the same value to both parties to the transac§2002); Peterson v. Mayer, 46 Minn. 468, 469, 49 N. W. 245, 13 L. R. A. 72; Posey v. Garth, 7 Mo. 94, 37 Am. Dec. 183; Lindner v. Cape Brewery, etc., Co., 131 Mo. App. 680, 111 S. W. 600 (cf. Anstee v. Ober, 26 Mo. App. 665; Paul . Minneapolis Threshing Mach. Co., 87 Mo. App. 647); Lane v. Phillips, 6 Jones L. 455 (cf. Pullen v. Green, 75 N. C. 215, 218).

4 Stubbs v. Slater, [1910] 1 Ch. 195; Wadsworth v. Adams, 138 U. S. 380, 34 L. Ed. 984, 11 Sup. Ct. 303; Shaeffer v. Blair, 149 U. S. 248, 37 L. Ed. 721, 13 Sup. Ct. 856; Quirk v. Quirk, 155 Fed. 199; Doss v. Long Prairie Levee District, 96 Ark. 451, 132 S. W. 443; Jeffries v. Robbins, 66 Kan. 427, 71 Pac. 852; Little v. Phipps, 208 Mass. 331, 94 N. E. 260, 34 L. R. A. (N. S.) 1046; Ranney v. Henry, 160 Mich. 597, 125 N. W. 693; Harrison v. Craven, 188 Mo. 590, 87 S. W. 962; Witte v. Storm,

236 Mo. 470, 139 S. W. 384; Jansen v. Williams, 36 Neb. 869, 55 N. W. 279, 20 L. R. A. 207; Quinn v. Le Duc (N. J. Eq.), 51 Atl. 199; Whaples v. Fahys, 87 N. Y. App. D. 518, 84 N. Y. S. 793; Lichtenstein v. Case, 99 N. Y. App. D. 570, 91 N. Y. S. 57; Abramson v. Dry Goods Refolding Co. (N. Y. Misc.), 166 N. Y. S. 771; Wilkinson v. McCullough, 196 Pa. 205, 46 Atl. 357, 79 Am. St. 702; Jackson v. Pleasanton, 101 Va. 282, 43 S. E. 573; Hutchinson v. Fleming, 40 Can. Supr. 134. And see supra, § 1022, ad fin. But see Rathenberger v. Jacob, 167 Wis. 273, 167 N. W. 271.

49 Nitedals Taendstikfabrik v. Bruster, [1906] 2 Ch. 671. It may be questioned whether the plaintiff's recovery in Hippisley v. Knee, [1905] 1 K. B. 1, can be justified on the facts. See Little v. Phipps, 208 Mass. 331, 94 N E. 260, 34 L. R. A. (N. S.) 1046.

tion, as in the case of money, the only problem in measuring the extent of a plaintiff's claim for restitution, when once it had been admitted that he had a valid claim, would be concerned with deductions because of (1) possible advantages received by the plaintiff from the part performance which had taken place, or (2) a possible right of recoupment on the part of the defendant for the plaintiff's failure completely to fulfil his contract. But when the plaintiff has given the defendant something other than land or money the necessity of putting a money value on his performance as a basis for judgment in his favor introduces two further problems; (1) Is the market value or the cost to the plaintiff of what he has rendered the criterion, or the benefit which the defendant has received? and (2) If the parties had fixed by contract a value for full performance by the plaintiff, how far does this limit his right to recover on a quasi-contractual basis a different value for full performance or a different ratable value for partial performance?

§ 1479. Rescission and restitution where there is no liability on the contract.

The matter directly under consideration is the right of rescission as a means of recovering the value of what has been given prior to a breach of contract; but there are other cases where this or an analogous right is allowed. Indeed, wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract, restoration of the value of what has been given must be allowed. Instances of this have been considered in other portions of this book, namely, the right to recover the value of necessaries furnished infants, 50 insane persons, 51 intoxicated persons, 52 married women; 53 the right to recover benefits furnished under an ultra vires contract with a corporation, 54 or under contracts voidable because of the Statute of Frauds. 55 Other instances where the contract between the parties is unenforceable because of impossibility 56 or void

59

able for fraud, 57 duress, 58 mistake, 50 or illegality,60 will be hereafter considered. In the present connection, however, the right may be considered of one who has failed to fulfil his contract, either (1) because of his own wrong or (2) because of an unjustified breach or repudiation by the other party, to recover for incomplete performance of an indivisible obligation.

§ 1480. Cost to the plaintiff or benefit to the defendant.

Where the plaintiff is in default under a contract, and is allowed a quasi-contractual recovery in order to prevent an unjust enrichment of the defendant and the infliction of a penalty upon the plaintiff out of proportion to the wrong he has committed, it seems clear that the law can impose no greater liability upon the defendant than to give up any benefit which he may have derived from the plaintiff's performance. To go further than this would be to penalize a defendant who has been guilty of no legal or moral wrong,61 and even though the immediate cause of the non-performance of a contract is the defendant's refusal to perform, the same result seems necessary, if the defendant has been given by the plaintiff's fault a defense for refusal.62 The use of common counts in quantum meruit and quantum valebat for the enforcement of both obligations has tended to confuse with the quasi-contractual obligations here under discussion, certain obligations based on actual contracts, namely, those where there is a real promise whether express or implied in fact to pay the reasonable value of goods or services. In such cases and on a fair construction of the parties' contract it is reasonable to suppose that if there is a market value for what the plaintiff is requested to furnish, that value is the measure of the promised price. If there is no market price, that it is at least the cost or worth from the plaintiff's standpoint, not limited by the benefit which must accrue to the defendant, that