Where, however, performance has been partly rendered of the counter promise for which an indivisible payment or transfer of property or other performance has been made, the courts of England and of a few American States seem to have found insuperable difficulty in allowing a recovery of the balance of value equitably due to the party who has made the payment or transfer.73 Such decisions seem clearly wrong. The difficulty of measuring the relief to which the plaintiff is entitled should not be a reason for giving him none. It is an obvious obligation in justice to return such a fraction of the consideration, or its value, as exceeds the value of the fraction of performance which the defendant has rendered.74 lift from his shoulders the burden of performance, but has not yet been extended so as to enable him to keep the other man's property for nothing.” 73 In Whincup v. Hughes, L. R. 6 C. P. 78, recovery was denied of any portion of a premium paid on behalf of an apprentice when the master died during the period of service. A similar decision was made in Ferns v. Carr, 28 Ch. D. 409. In Cowley v. Northern Pac. Rd., 68 Wash. 558, 123 Pac. 998, 41 L. R. A. (N. S.) 559, a conveyance of land was made to the defendant railroad in consideration of its promise to grant certain passes over its lines during a term of years. For a number of years this contract was kept by the road, but in 1906, the issue of passes became illegal and was stopped. It was held that plaintiff was not entitled to rescission or damages. See also Bruce v. Indianapolis Gas Co., 46 Ind. App. 193, 92 N. E. 189; Pinkham v. Libbey, 93 Me. 575, 45 Atl. 823, 49 L. R. A. 693; Dorr v. Chesapeake & Ohio R., 78 W. Va. 150, 88 S. E. 666, L. R. A. 1916 E. 622. Cf. Bell v. Kanawha Traction & Electric Co. (W. Va.) 98 S. E. 885. 74 In Louisville &c. R. v. Crowe, 156 Ky. 27, 160 S. W. 759, 49 L. R. A. (N. S.) 848, the facts of which were similar to those in Cowley v. Northern Pacific R., stated in the preceding note, the decision was otherwise, the court saying: "These authorities merely hold that it is a general rule of law that where a contract is lawful when made, and a subsequent enactment renders performance of it unlawful, neither party shall be prejudiced, and the contract is at an end. They do not hold that one party can take the property of another under a promise to pay for it, and still hold it, and not pay for it, if by reason of any enactment of law after the contract is made, such party is prohibited from making payment in the article he contracted to pay with. And if those cases did so hold, we would be inclined to disagree with them. The party obtaining the property is this way should be required to restore it, or to pay for it upon equitable terms. The equitable way to adjust the matter is to require appellant to pay to appellee, a reasonable sum, based, not on the probable value of what he would have received thereunder for the remainder of his life, nor upon a breach of the contract; but for the right of way so taken and necessarily retained; taking into consideration, of course, what appellee has already received under the contract." In McCammon v. Peck, 9 § 1975. Incomplete work on property which is destroyed. One who works upon a building (or other property) under an indivisible contract with the owner, requiring him to complete a certain task or accomplish a certain result cannot perform his full undertaking if the building or property in question is destroyed. He is excused from liability for his failure, because the contract required the continued existence of the building.75 Equally clearly he cannot sue the owner for loss of profit. If the destruction of the building was without fault on the part of the latter, he, as well as the workman, is excused from liability on the contract. But most American decisions allow recovery on a quantum meruit for the value of the work which has been done prior to the destruction.76 The law of England and of a few of the United States, however, denies recovery.77 Ohio C. C. 589, a lawyer after being paid in full for certain legal work died when it was but partially completed. His estate was held liable for the excess which he had received over the fair value of what he had done. See also Jones-Gray Construction Co. v. Stephens, 167 Ky. 765, 181 S. W. 659; Callahan v. Shotwell, 60 Mo. 398; Thomas v. Hartshorne, 45 N. J. Eq. 215, 16 Atl. 916, 3 L. R. A. 381; Bell v. Kanawha Traction & Electric Co. (W. Va.), 98 S. E. 885. 75 See supra, § 1948. 76 Keeling v. Schastey, 18 Cal. App. 764, 124 Pac. 445; Goldfarb v. Cohen, 92 Conn. 277, 102 Atl. 649; Lord v. Wheeler, 1 Gray, 282; Cleary v. Sohier, 120 Mass. 210; Butterfield v. Byron, 153 Mass. 517, 27 N. E. 667, 12 L. R. A. 571, 25 Am. St. Rep. 654; Angus v. Scully, 176 Mass. 357, 57 N. E. 674, 49 L. R. A. 562, 79 Am. St. Rep. 318; Young v. City of Chicopee, 186 Mass. 518, 72 N. E. 63; Ganong v. Brown, 88 Miss. 53, 40 So. 556, 117 Am. St. Rep. 731; Haynes, etc., Co. v. Second Baptist Church, 88 Mo. 285, 57 Am. Rep. 413 (but see Fairbanks v. Richardson Drug Co., 42 Mo. App. 262; Pike Electric Co. v. Richardson Drug Co., 42 Mo. App. 272); Dame v. Wood, 75 N. H. 38, 70 Atl. 1081 (Cf. s. c. 73 N. H. 222, 60 Atl. 744, 70 L. R. A. 133); Niblo v. Binsse, 1 Keyes, 476; Dolan v. Rodgers, 149 N. Y. 489, 494, 44 N. E. 167; Hayes v. Gross, 9 N. Y. App. Div. 12, 40 N. Y. S. 1098, affd. 162 N. Y. 610, 57 N. E. 1112; Hollis v. Chapman, 36 Tex. 1; Weis v. Devlin, 67 Tex. 507, 3 S. W. 726, 60 Am. Rep. 38; Clark v. Franklin, 7 Leigh (Va.), 1; Hysell v. Sterling Coal Co., 46 W. Va. 158, 33 S. E. 95; Cook v. McCabe, 53 Wis. 250, 10 N. W. 507, 40 Am. Rep. 765; Halsey v. Waukesha Springs Sanitarium, 125 Wis. 311, 104 N. W. 94, 110 Am. St. 838. See also Rawson v. Clark, 70 Ill. 656; Clark v. Busse, 82 Ill. 515; American Towing &c. Co. v. Baker-Whiteley Coal Co., 117 Md. 660, 679, 84 Atl. 182, Ann. Cas. 1914 A. 46; Teakle v. Moore, 131 Mich. 427, 91 N. W. 636; Ellis v. Midland R. Co., 7 Ont. App. 464. "Mentone v. Athawes, 3 Burr. 1592; Appleby v. Myers, L. R. 2 C. P. 651; The Madras, [1898] Prob. 90; Brumby v. Smith, 3 Ala. 123; Clark v. Collier, 100 Cal. 256, 34 Pac. 677; Siegel v. § 1976. Reasons supporting the American decisions. The latter decisions have been supported on the ground that the defendant has derived no benefit from the work and labor which the plaintiff has done; 78 but the right of recovery, generally, where full performance has been prevented by impossibility does not depend, under the American law at least, on whether the defendant has received and still retains a benefit at the time when further performance becomes impossible, nor on whether at any prior time the performance which the defendant received was advantageous to him. It is enough that the defendant has actually received in part performance of the contract something for which when completed he had agreed to pay a price. The case of work on a building which has been destroyed while the work was still incomplete is not peculiar, and the majority of American decisions have decided the question in exact accordance with the analogy of other cases similar in principle. When goods are destroyed after the property in them has passed to the defendant, he must pay for those goods, though the seller's performance is still incomplete and no advantage has accrued to the buyer from the partial performance." When one who has contracted to receive personal service dies, or becomes incapacitated to use what has been furnished him, it is submitted that he or his estate must nevertheless pay for what he has received before impossibility supervened, though it has proved of no value to him. If money is paid in part performance of a contract, which later becomes impossible, it is submitted that the de Eaton & Prince Co., 165 Ill. 550, 46 N. E. 449; Huyett Mfg. Co. v. Chicago Edison Co., 167 Ill. 233, 47 N. E. 384, 59 Am. St. Rep. 272; Krause v. Board of Trustees, 162 Ind. 278, 70 N. E. 264, 65 L. R. A. 111, 102 Am. St. Rep. 203; Taulbee v. McCarty, 144 Ky. 199, 137 S. W. 1045, 36 L. R. A. (N. S.) 43, Ann. Cas. 1913 A. 456; King v. Low, 3 Ont. L. R. 234. And see Forman v. The Liddesdale, [1900] A. C. 190, 202. Louisville Foundry, etc., Co. v. Patterson, 29 Ky. L. Rep. 349, 93 S. W. 22; Fildew v. Besley, 42 Mich. 100; Fair banks v. Richardson Drug Co., 42 Mo. App. 262; Pike Electric Co. v. Richardson Drug Co., 42 Mo. App. 272. 78 Keener, Quasi Contracts, p. 254. 79 See supra, § 799; and Colonial Ins. Co. v. Adelaide Ins. Co., 12 A. C. 128. Cf. Rochester Oil Co. v. Hughey, 56 Pa. 322; and see Williston on Sales, § 277. 80 The cases cited supra, n. 65, certainly give no indication that the plaintiff's right depends on the defendant's ability to utilize what he has received. fendant cannot show as a defence to an action for money had and received, that the money has been stolen from him, and that he has therefore derived no benefit. The situation is different from that which exists where money or property has come into the hands of a defendant under a mistake.81 In the cases under consideration the defendant has agreed to take and pay for something and he has got part of what he agreed to take. Therefore where the plaintiff's work, labor and materials have been added to a building of which the defendant is the owner, the defendant must pay the value of what he has received. As a practical reason for the allowance of recovery, it has been suggested that the defendant may, and usually does insure his building, and is thereby indemnified, while the plaintiff cannot insure labor or materials which have become the defendant's property.82 It has occasionally been suggested also that the owner is under an implied obligation to maintain the building in existence so that the work could be performed upon it.83 This last reason will not bear examination. If it were sound the employee could recover not simply the value of what he has done but damages for being prevented from performing the whole contract. Even an express promise to sell or lease property is excused by its destruction,84 and there surely can be no more comprehensive guaranty of continued existence in a contract of the sort under discussion.8 85 Where a contract with the owner of chattels provides for work to be done thereon, and the property is destroyed when the work is partially completed, the situation is the same as in the case of a building. Several New York decisions allow recovery for the value of the work; 85 the English law denies it.86 81 See supra, § 1595. 82 Woodward, Quasi Contracts, §117. 83 Niblo v. Binsse, 1 Keyes, 476. See also Rawson v. Clark, 70 Ill. 656; Haynes v. Second Baptist Church, 12 Mo. App. 536, 545, 88 Mo. 285, 57 Am. Rep. 413. 84 See supra, § 1946. 85 The reasoning of Niblo v. Binsse was rejected, though the decision of the case held correct, by Landon, J., in Hayes v. Gross, 9 N. Y. App. D. 12, 40 N. Y. S. 1098. 854 Whelan v. Ansonia Clock Co., 97 N. Y. 293; Labowitz v. Frankfort, 4 N. Y. Misc. 275, 23 N. Y. S. 1038; Rhodes v. Hinds, 79 N. Y. App. Div. 379, 79 N. Y. S. 437. 86 8 Appleby v. Myers, L. R. 2 C. P. 651. § 1977. Measure of damages where full performance is prevented by impossibility. The measure of recovery for part performance of an indivisible contract, or of an indivisible portion of a divisible contract, where full performance is prevented by excusable impossibility, was distinguished in the preceding section from that applicable in certain cases of mistake, and must now be distinguished both from cases where the plaintiff has been in fault,87 and from cases where the defendant has been in fault.& In the case now under consideration, the rule in the United States, at least, seems clear that the plaintiff may recover the fair value of the performance which he has rendered. It is sometimes said that the defendant is liable for the benefit which he has received,88" but unless the word benefit is given a meaning wider than is natural, the statement is inadequate. In the first place, the word benefit suggests that the matter is to be examined as it exists after the impossibility has supervened; but, as indicated in the preceding section, the American law seems clear that where the defendant has received part performance regarded as valuable under the contract between the parties, the fact that this value has been destroyed by the very circumstances which make full performance of the contract impossible, will not preclude recovery. A second reason for discarding the use of the word benefit, in this connection, is because it suggests that what has been received by the defendant must be of pecuniary advantage to him. This seems unnecessary. Thus, suppose one who has agreed to take a course in shorthand, for which a total price is fixed, becomes paralyzed or loses his hands before the course is completed, this would excuse liability on the contract, but, it would seem that a quasi-contractual obligation remained. So if services to a third person are contracted for, and they cannot be rendered in full because of the third person's death, or refusal to receive them, recovery may be had for the part performance though it is of no pecuniary benefit to the promisor.89 Ac 87 See supra, §§ 1473-1477. 88 See supra, §§ 1478-1485. 887 Coe v. Smith, 4 Ind. 79, 58 Am. Dec. 618; Bing v. National Supply Co. (Tex. Civ. App.), 105 S. W. 543; Hubbard v. Belden, 27 Vt. 645. 89 In Moore v. Robinson, 92 Ill. 491, the defendant contracted for |