This result is sometimes explained on the ground that mutual assent to rescission is presumed, 47 but the explanation is an undesirable fiction. The conduct of the parties can hardly amount to an agreement of rescission unless silence and nonfeasance are sufficient to amount not only to an acceptance but also to an offer. 48 Moreover, it may be supposed that one party said to the other "I do not propose to make a tender within a reasonable time, nevertheless I do not assent to rescind the bargain." Surely such notice could not enlarge the rights of the party who gave it though clearly negativing any assent to rescission.

There are decisions opposed to the view which is here expressed. They require that a defendant in order to free himself from the chance of being made liable by a tender after a reasonable time on the part of the plaintiff, must give notice.49 These decisions, however, seem opposed to principle. Mutual promises to buy and sell goods of fluctuating price on March first,

neither party had done anything to complete the transaction Blanche English had the right to treat the contract as rescinded and to enter into the deal with the plaintiff in error. 'Mutual delinquency gives rise to the presumption of mutual assent to a rescission. See Parsons, Contracts, 667 et seq., and 16 Ohio St. 454.' Per Brinkerhoff, J., in Mowry v. Kirk, 19 Ohio St. 375, 383; Lewis v. White, 16 Ohio St. 444, 454." 47 See extracts in the preceding note. 48 See supra, § 91.

49 In Jones v. Gibbons, 8 Exch. 920, to an action against the defendant on a contract to deliver a certain quantity of iron "as required," the defendant pleaded that the plaintiff did not request delivery within a reasonable time.

The plaintiff made replication that as soon as the iron was required by him he requested delivery. On demurrer the plea was held bad.

The Court seemed to admit that the plaintiff's right to require the iron was limited to a reasonable time,

but that notice by the defendant was necessary in order to terminate the plaintiff's right. Alderson, B., said: "So soon as a reasonable time elapsed, it was competent for the defendant to say, 'I desire you to ask me to deliver the iron now or never.' Pollock, C. B. said: "The defendant reads the contract as if the condition which the law implies were part of it. No doubt, where a contract is silent as to time, the law implies that it is to be performed within a reasonable time; but there is another maxim of law, viz., that every reasonable condition is also implied; and it seems to me reasonable that the party who seeks to put an end to the contract, because the other party has not, within a reasonable time, required him to deliver the goods, should in the first instance inquire of the latter whether he means to have them." A similar view was expressed in McFadden v. Henderson, 128 Ala. 221, 29 So. 640; Cameron v. Wells, 30 Vt. 633.

cannot be performed on May first because the performance at that day is substantially different from performance on March first. Therefore, neither party can succeed in an action supported by tender on a later day; and as each party is equally responsible for the lack of a prior tender or demand, neither can object to the other's failure to make it. Even though the contract fixes no time for performance it may be equally clear that performance at a late day is not the same in substance as performance within a reasonable time. Under a contract for the purchase and sale of election badges, a tender made after the election is not the same thing as a tender made before election. The distinction is only one of degree between this case and any case where under a contract for the sale of goods of fluctuating value a tender is made unreasonably late.

§ 1971. A party cannot be deprived of what he has received under a contract unless put in default.

The case must be distinguished where one party to the contract has already received a benefit under it. In such a case the other party to the contract seeking to rescind and to recover that benefit or its value must take affirmative action. A typical case is where a contract for the purchase and sale of land has been made and the purchaser has been put in possession. Here though the payment of the price, or of the last instalment of the price, may be concurrently conditional with the conveyance of the land, the vendor cannot by mere lapse of time become entitled to take the position that the contract is discharged, and that the purchaser may be ejected from the premises. The vendor must put the purchaser in default not only in order to recover the price if he so desires, but also in order to become entitled to rescind and regain the premises.

50 In Bank of Columbia v. Hagner, 1 Pet. 455, 7 L. Ed. 219, it was said: "If the covenants of the vendor to convey and the purchaser to pay purchase money are mutual and dependent, the vendor must at law convey, or tender a proper conveyance before he can put the purchaser in default, and thereby become entitled

...

to rescind." In Scott v. Smith, 58 Or. 591, 115 Pac. 969, it was said: "As a general rule, the party who asks for the rescission of a contract for the sale of real estate must be himself without fault, and when, as in this case, the payment of the purchase money and the making or tender of the deed are to occur simultaneously,

§ 1972. Recovery of value of performance, when counter

performance impossible.

If performance on one side or the other of a contract becomes excusably impossible while the transaction is still wholly executory on both sides, not only is the contract discharged but neither party is subject to further obligation of any kind. 51 But where the party excused by impossibility has partly performed the contract on his side before the impossibility arises, or where the other party has partly or wholly performed without receiving compensation, justice requires the imposition of a quasi-contractual obligation on the party receiving such performance to pay its fair value. No fundamental distinction in principle can be drawn between these two cases. It

should make no difference whether the party seeking quasicontractual relief is the one who has failed, because of impossibility, to fulfil his contract or whether it is the other party who has rendered performance. In both cases performance of the contract has been stopped midway without fault on either side. Also, it should be immaterial at what stage of performance impossibility supervenes. The plaintiff may have performed in full or only in part. If the defendant has not performed at all there is total failure of consideration for what the plaintiff has given. If the defendant has partly performed, but to a less degree than the plaintiff, there is only partial failure, and consequently it may be more difficult to fix the amount which the plaintiff should justly recover, but this difficulty is not serious. Finally, it should be immaterial whether the plaintiff's claim is based on a transfer by him of money, land, goods, labor and materials, or personal services. The basis of his right is in each case the same. After it has thus been pointed out that such distinctions of fact in the cases have no significance in legal principle, the decisions may be considered more specifically.

If property has been transferred and is still in the buyer's possession unused and uninjured when impossibility excuses further performance, he should be allowed to return it if he wishes to do so; 52 if used or injured he should be liable for its value. 53

The performance of one who has merely contracted to pay money will not generally become excusably impossible; 54 but this may happen when a partly performed contract is forbidden by supervening change of law. Money previously paid in such a case, for which no return has been received, should be recoverable. 55 Where money is to be paid in consideration of the receipt of personal services, or of property, circumstances

52 See supra, §§ 703, 802. 53 See supra, § 802.

54 See supra, § 1932.

55 In Manhattan Life Ins. Co. v. Buck, 93 U. S. 24, 23 L. Ed. 789, the plaintiff was prevented by war from paying premiums on his life insurance policy. It was expressly provided in

the policy that in case of non-payment the company should not be liable and that the policy should "cease and determine." The court held that though there could be no recovery on the policy, so much of the premiums as exceeded the value of the insurance received should be returned.

may readily make impossible performance of a condition on which the money was to be paid. 56

§ 1972a. Assumption of risk.

There is no doubt that it is possible for one who contracts to perform in whole, or in part, before the other party performs, to agree to assume the risk of all contingencies which may render impossible the complete fulfilment of the contract; and in any attempt by a party to recover on principles of quasicontract for what he has performed when full performance of the contract has been excused by impossibility, the primary questions must be: "Did the plaintiff take the risk of the impossibility which has occurred? Is the contract to be construed as providing not only that the plaintiff should receive pay for his performance on certain contingencies, but that except on those contingencies he should receive no pay?"

The English court goes far in thus construing contracts, 57 but even in England where the property in goods has passed to a buyer, and owing to impossibility the time fixed in the contract for payment can never come, 58 or even though the full amount of the goods which under the contract was to be an entire indivisible performance has not been delivered by` the seller, 50 he is allowed to recover the price or value of what he gives.

In the United States the right of recovery is general, whether the contract is for the sale of goods, or land, or the rendering of services, unless a contrary intention clearly appears.60 And though it must be possible for the risk to be so assumed that no recovery can be had if full performance becomes impossible, yet the mere fact that there is stated in the contract a condition on which payment shall be made, and that the condition (whether it is one of full performance, as is frequently the case

56 So, too, the obligation of one who had contracted to pay for having his portrait painted would be discharged by his own death.

57 See Cutter v. Powell, 6 T. R. 320; Appleby v. Dods, 8 East, 300; Appleby v. Meyers, L. R. 2 C. P. 651; Whincup v. Hughes, L. R. 6 C. P. 78; and see

the Coronation Cases, supra, § 1954. 58 See supra, § 799.

59 Colonial Ins. Co. v. Adelaide Ins. Co., 12 A. C. 128.

60 Williams v. Butler, 58 Ind. App. 47, 56, 105 N. E. 387, 107 N. E. 300; and see decisions in the following sections passim.