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The Law Of Quasi Contracts | by Frederic Campbell Woodward



For some time, there has been urgent need of a book containing an analysis and classification of quasi contractual obligations, a more thorough treatment of many parts of the subject, and a larger collection of modern authorities. It was with the hope of meeting this need that the present work was undertaken.

TitleThe Law Of Quasi Contracts
AuthorFrederic Campbell Woodward
PublisherLittle, Brown, And Company
Year1913
Copyright1913, Little, Brown, And Company
AmazonThe Law of Quasi Contracts

By Frederic Campbell Woodward, Professor Of Law In Leland Stanford Junior University

To John Henry Wigmore And The Memory Of Ernest W. Huffcut This Book Is Gratefully Dedicated

-Preface
Professor Keener's treatise on Quasi Contracts appeared in 1893. It has done much to clarify the views of lawyers and teachers, and undoubtedly has had a salutary influence in the development of the l...
-Chapter I. Introduction: Origin And Nature Of Quasi Contracts
Sec. 1. (I) Scope of the subject. Sec. 2. (II) Origin of quasi contracts. Sec. 3. (III) Nature of quasi contracts: (1) Chief characteristics. Sec. 4. (2) Quasi contracts distinguished from contract...
-Sec. 1. (I) Scope Of The Subject
Since the field of quasi contracts is not one of settled and precise limits, it is necessary, at the outset, to indicate just what part of the law of obligation this treatise is intended to cover. The...
-Sec. 2. (II) Origin Of Quasi Contracts
Although there are earlier cases in which obligations which would now be recognized as quasi contractual were enforced, Lord Mansfield's opinion in the case of Moses v. Macferlan,1 decided by the Cour...
-Sec. 3. (III) Nature Of Quasi Contracts: (1) Chief Characteristics
The general nature of quasi contractual obligations is revealed by the foregoing sketch of their origin. They may be defined as legal obligations arising, without reference to the assent of the obligo...
-Sec. 4. (2) Quasi Contracts Distinguished From Contracts
Only within the last generation have quasi contractual obligations been commonly so called. They were formerly regarded as a species of contract, and to distinguish them from express contracts and con...
-Sec. 5. (3) Quasi Contracts Distinguished From The Duty Not To Commit A Tort
Quasi contractual obligations and the obligation or duty a breach of which constitutes a tort4 are alike paramount, or irrecusable. That is, unlike contractual obligations, they are imposed without re...
-Sec. 6. (4) Quasi Contracts Distinguished From Equitable Obligations Proper
Quasi contracts are frequently referred to as equitable in character.2 And they are equitable in the sense that, unlike most legal obligations, they rest not at all upon formal conceptions inherited f...
-Sec. 8. (1) Receipt Of A Benefit
The word enrichment has been employed by previous writers to describe this element of quasi contractual obligation. But the term is unsatisfactory in that it connotes an actual increase of the defen...
-Sec. 9. (2) Retention Of Benefit Inequitable: Classification Of Quasi Contracts
It is of the essence of quasi contractual obligation that the retention of the benefit received by the defendant would be unjust. In a large proportion of the reported cases the presence of this eleme...
-Part I. Benefits Conferred In Misreliance On Right Or Duty. Chapter II. General Principles
Sec. 10. Definition of misreliance. Sec. 11. (I) Causes of misreliance : Mistake of fact and mistake of law. Sec. 12. Same : Mistake of anticipated fact. Sec. 13. (II) Misreliance negatived : (1) ...
-Sec. 11. (I) Causes Of Misreliance: Mistake Of Fact And Mistake Of Law
The word fact, in the preceding section, is used in the broadest sense. As the word is ordinarily employed by courts and lawyers, however, what may be called legal facts are excluded. Questions of...
-Sec. 12. Same : Mistake Of Anticipated Fact
Cases frequently occur in which a benefit is conferred upon the assumption that a certain event will happen or that a certain present fact will continue to exist, which assumption proves to be erroneo...
-Sec. 13. (II) Misreliance Negatived: (1) By Knowledge Or Belief
One who either knows or believes that he is under no legal obligation to confer a certain benefit upon another and that he will acquire no right thereby, but nevertheless confers the benefit, cannot j...
-Sec. 14. Same : Forgotten Facts
The knowledge or belief that negatives misreliance is a knowledge or belief present to the mind at the time the benefit is conferred. One who has forgotten a fact once known to him, or believed by him...
-Sec. 15. Same : Negligent Failure To Ascertain Facts
Analogous to the case of one who forgets a fact affecting his legal right or duty, is that of one whose ignorance is due to his failure to avail himself of means of knowledge. No matter how close at h...
-Sec. 16. (2) By Doubt: Assumption Of Risk
One who entertains a doubt as to the existence, present or future, of a certain fact, cannot be said to believe in and rely upon that fact. If he acts with any doubt that the fact exists or will exist...
-Sec. 17. (3) By Compromise Or Settlement
If there is a difference of opinion between A and B as to the existence of a fact essential to an obligation from A to B, and a compromise is effected between them, A cannot, upon learning that his be...
-Sec. 18. (III) Misreliance On Right Or Duty, As Distinguished From Policy
It is sometimes said that money paid or other benefits conferred under a mistake of fact cannot be recovered if the mistake is as to a collateral or extrinsic fact. The words collateral and extrins...
-Sec. 19. (IV) Misreliance On Right Against Or Duty To Third Person
Is there an obligation to make restitution of a benefit conferred under the inducement of a mistake as to one's legal relation, not with the recipient of the benefit, but with a third person? In a few...
-Sec. 20. (V) Circumstances Justifying Retention Of Benefit
The retention of a benefit conferred in misreliance upon a right or duty is generally inequitable. Certain circumstances, however, have been recognized by the courts as justifying a refusal to make re...
-Sec. 21. (1) Plaintiff Guilty Of Misconduct Toward Defendant
Upon the principle that finds expression in the maxim of equity, He who comes into equity must come with clean hands, restitution should not be enforced in favor of one who, in the course of the tra...
-Sec. 22. (2) Plaintiff Under Moral Obligation To Confer Benefit
One who, while under a moral obligation to confer a certain benefit upon another, confers it because he mistakenly supposes that he is under a legal obligation so to do, or because he mistakenly suppo...
-Sec. 23. (3) Plaintiff's Failure To Place Defendant In Statu Quo
If, in exchange for the benefit conferred upon the defendant, the defendant gives something of value to the plaintiff which the plaintiff, when he discovers his mistake, is able to return in specie, i...
-Sec. 24. (4) Plaintiff's Receipt Of Equivalent Benefit
If the plaintiff, not by way of exchange, yet in consequence of the mistake and at the defendant's expense, reaps a benefit equivalent in value to that conferred upon the defendant, restitution should...
-Sec. 25. (5) Change Of Position By Defendant
Ordinarily, by restoring a benefit conferred in misreliance upon a right or duty, one merely places himself in the position where he would have been if the mistake had not been made. In other words re...
-Sec. 26. (A) Change Of Position Must Be Irrevocable
It should be emphasized that change of position alone is not a defense - the change must be irrevocable. This point, which appears in some decisions to have been overlooked, is brought out with great ...
-Sec. 27. (6) Payment Over Or Settlement With Principal As A Defense To Agent
The rule is established that money paid to an agent by mistake may not be recovered from him if, before learning of the mistake, he pays it over to his principal.2 That this is thought to rest upon th...
-Sec. 28. (C) Payment Over As A Defense To An Executo Or Administrator
Payment over, before notice, is said to be a defense to an executor or administrator as well as to an agent.4 But there is this significant difference - an executor or administrator must show not only...
-Sec. 29. (D) Beneficial Disposition Of Money Or Goods Not A Defense
The consumption, sale, or other beneficial disposition by the defendant of that which he received, or, in the case of money received, its payment out for the benefit of the defendant, does not constit...
-Sec. 31. (F) Laches As A Defense
Laches, by which is meant such tardiness in asserting a right as makes its enforcement inequitable, bars the enforcement of quasi contractual as well as of other obligations of an equitable nature.1 B...
-Sec. 32. (VI) When Does Cause Of Action Arise? Necessity Of Demand
Inasmuch as the right of one who confers a benefit in misreliance on a right or duty is equitable in character, although enforced in an action at law (ante, Sec. 6), it should be held to arise only wh...
-Sec. 33. (VII) Running Of Statute Of Limitations
Ordinarily the statute of limitations runs from the day when the cause of action arises. But in cases of money paid or other benefit conferred in misreliance upon a right or duty, it ought in justice ...
-Sec. 34. (VIII) Recovery Of Interest
The primary obligation in quasi contract is to make restitution in value (ante, Sec. 3); hence it may be contended that the purpose and effect of the action of assumpsit, as a quasi contractual remedy...
-Chapter III. General Principles (Continued) Misreliance Resulting From Mistake Of Law
Sec. 35. In general. Sec. 36. (I) Reasons for the rule unsound. Sec. 37. (II) Encroachments upon the rule: (1) In two jurisdictions rejected. Sec. 38. (2) In England, tendency to reject rule in equ...
-Sec. 35. In General
In the well-known case of Bilbie v. Lumley,1 Lord Ellenborough asked counsel for plaintiff whether he could state any case where if a party paid money to another voluntarily with a full knowledge of ...
-Sec. 36. (I) Reasons For The Rule Unsound
The reason almost invariably assigned for the rule is that given by Lord Ellen-borough in the leading case: Every man must be taken to be cognizant of the law. This appears to be generally regarded ...
-Sec. 37. (II) Encroachments Upon The Rule : (1) In Two Jurisdictions Rejected
In at least two American jurisdictions - Connecticut and Kentucky - the alleged distinction between mistake of fact and mistake of law has been consistently denied. In the most frequently cited and qu...
-Sec. 38. (2) In England, Tendency To Reject Rule In Equity
In England there is a tendency, in equity cases, to disregard the arbitrary and unjust distinction between the recovery of money paid under mistake of law and relief from such mistakes in other cases....
-Sec. 39. (3) Statutory Modifications
In at least six jurisdictions - California, Montana, North Dakota, South Dakota, Oklahoma, and Georgia - the rule has been modified by legislative enactment. In the first five, the statute, after prov...
-Sec. 40. (4) Payments By Public Officers
It has frequently been decided that the rule of no recovery does not extend to the case of the payment of money by public officers or public agents.4 The reason generally offered for this limitation i...
-Sec. 41. (5) Payments To Trustees Or Court Officers
Some of the courts have evinced their belief in the injustice and dishonesty of the rule of no recovery by refusing to extend it to cases of payments to trustees or other officers of the court.3 Said ...
-Sec. 41. (5) Payments To Trustees Or Court Officers. Continued
2 Pomeroy, Equity Jurisprudence, Sec. 846. (3) That relief should be granted from mistakes of law made in reducing to writing a contract already agreed upon by the parties, the result being that th...
-Sec. 43. (IV) Mistake Of Foreign Law
As a result of the rule that even the courts of one State are not presumed to know the laws of other States and cannot take cognizance of them until legally proved, money paid by a citizen of one Stat...
-Sec. 44. (V) Mistake Of Both Fact And Law
Where one's misreliance upon a supposed duty is the result of two mistakes, one of fact and one of law, he is not entitled to relief in jurisdictions where money paid under mistake of law cannot be re...
-Chapter IV. Misreliance On Non-Existent Or Invalid Contract
Sec. 45. In general. Sec. 46. (I) Misreliance on contract: Gifts and gratuitous services distinguished. Sec. 47. Same: Peculiar doctrine of a few cases. Sec. 48. Same : Disappointed expectations. ...
-Sec. 45. In General
One may honestly believe that a certain transaction amounts to a contract, when as a matter of fact some essential element of contract is wanting. A benefit conferred in misreliance upon such a suppos...
-Sec. 46. (I) Misreliance On Contract: Gifts And Gratuitous Services Distinguished
If one, at the time of conferring a benefit upon another, confers it as a gift, that is, without intending thereby to establish contractual relations, it cannot afterward be claimed that the benefit w...
-Sec. 47. Same: Peculiar Doctrine Of A Few Cases
In a few cases it has been held, apparently, that even though the plaintiff intends not to charge for his services, he may recover if the defendant is unaware of such intention: Thomas v. Thomasville...
-Sec. 48. Same : Disappointed Expectations
It is immaterial that a donor's hope or expectation that his donee will reciprocate his generosity or indirectly reward him is disappointed. Misreliance upon a supposed legal right, not upon a mere ho...
-Sec. 49. Same : Incidental Benefits
Where one, in the preservation of his own property or the promotion of his own interests, does something which is of incidental advantage to another, there is no obligation to pay the value of such ad...
-Sec. 50. Same: Burden Of Proof
Although the burden of proving reliance upon a supposed contract rests on the plaintiff, evidence that a substantial benefit has, with the defendant's acquiescence, been conferred upon him, will in mo...
-Sec. 51. Same: Effect Of Family Relationship Upon Burden Of Proof
The presumption of an expectation of payment does not arise when services are rendered by one member of a family to another member, and in such a case it is necessary for the plaintiff to prove affirm...
-Sec. 52. (II) Sundry Instances Of Obligation Classified According To Nature Of Defect In Contract: (A) Acceptance Of Offer Wanting: (1) Because Of Ambiguity
It is essential to the formation of a contract that the acceptance conform to the requirements of the offer. But if there is an ambiguity in the terms of the offer, an acceptance which appears to coin...
-Sec. 53. Same: (2) Because Of Offeree's Ignorance Of Offer
One who knows or has reason to believe that compensation is expected for goods or services tendered him ought not to accept such goods or services unless he intends to pay for them. Consequently, thou...
-Sec. 55. Same : (4) Circumstances Justifying Retention Of Benefit
Under some circumstances the recipient of a benefit conferred in reliance upon a supposed contract which turns out to be non-existent because the offer was never actually accepted may justly decline t...
-Sec. 56. Same: (A) When Defendant Knows That Compensation Is Expected: Boston Ice Co. V. Potter
As has been said (ante, Sec. 54), while the acceptance of the goods or services by one who knows or has reason to believe that he is expected to pay for them will be held to indicate an intention to p...
-Sec. 57. Same : (B) When Defendant Believes That Compensation Is Not Expected
Ordinarily, if a benefit is conferred with the intention of charging therefor, the circumstances preclude the recipient from subsequently claiming with reason that he believed that no compensation was...
-Sec. 58. Same: (C) Concord Coal Co. V. Ferrin, And Boul-Ton V. Jones
A failure to make the distinction pointed out in the last section, it is submitted, brought about an unjust result in the New Hampshire case of Concord Coal Co. v. Ferrin.1 One Bean, being indebted to...
-Sec. 59. (B) Assumed Fact Non-Existent
If, in making a contract, it is taken for granted by both parties that a certain fact exists, the non-existence of which would make the contract impossible of performance, and the fact does not exist,...
-Sec. 60. Same : (L) Sale Or Lease Of Non-Existent Property
The fact most frequently taken for granted, in the formation of contracts, is the existence of the subject matter, or the thing concerning which the parties contract. Thus, in contracts for the sale o...
-Sec. 61. Same : (2) Insurance Of Non-Existent Risk
Upon the same principle as governs the cases considered in the preceding section, premiums paid on a policy of marine insurance by one who in reality had no goods on board, or for a voyage that was ne...
-Sec. 62. Same: (3) Assignment Of Void Patent
The assignment of a void patent presents a particularly interesting case of the non-existence of the thing concerning which the parties contract. Such an assignment purports to transfer the exclusive ...
-Sec. 63. Same : (4) Sale Of Non-Existent Or Defective Title
The ability of one who contracts to sell property, either real or personal, to give a good title, is never regarded as a fact the non-existence of which invalidates the contract. If the contract conta...
-Sec. 64. (C) Promise Indefinite
A promise so general or indefinite that it does not enable the courts to determine the nature and extent of the obligation assumed must be regarded as no promise at all. Such has been the fate of a pr...
-Sec. 65. Same : Engagements Of Honor Distinguished
The cases considered in the preceding section should be distinguished carefully from those in which the form or character of the promise leads to the conclusion that the plaintiff did not rely upon it...
-Sec. 66. (D) Required Form Wanting
It is essential to the validity of certain contracts that they be executed in a particular manner or with prescribed formalities.1 Thus it is sometimes required by statute that certain contracts of mu...
-Sec. 67. (E) Contractual Capacity Wanting
A contract possessing all the internal elements of validity may be invalidated by the fact that one of the parties thereto is regarded by the law as incompetent to contract. If either party, however, ...
-Sec. 69. Same: (2) Infants
In England, at the common law, an infant's contract is binding upon him if it is for his benefit.2 This is also the law in Rhode Island;3 but the general rule in America is that an infant's contract i...
-Sec. 70. Same: (3) Lunatics, Drunkards, And Spendthrifts
One who in a proper proceeding has been judicially declared to be a lunatic, drunkard, or spendthrift, and placed under a guardianship, is thereby deprived of his legal capacity to contract.3 The quas...
-Sec. 72. (F) Authority Of Agent Wanting
A contract entered into with one who is believed to be the authorized agent of another, but who in reality has no authority to act in the premises, is void. The promise which is supposed to be made by...
-Sec. 73. Same: Instrument Under Seal
The question considered in the preceding section has occasionally been presented in cases of instruments under seal executed on behalf of a partnership but without the express authority of all the par...
-Sec. 75. Same: Receipt Of Benefit By Principal
Whether or not the plaintiff's performance, especially if it consist in the payment of money, results in a benefit to the defendant is a question likely to arise in cases of contracts entered into wit...
-Sec. 76. Same : Misuse Of Money By Agent
Professor Keener contends that where money is borrowed by an agent having no authority to borrow, and is made a part of the funds of the principal, and then misused by the agent, the lender is not ent...
-Sec. 77. Same : Receipt Of Benefit By Agent: Smout V. Ilbery
It is the general rule that one who purports to contract as the agent of another impliedly warrants his authority, and therefore may be held for breach of warranty if the assumed authority is wanting....
-Sec. 79. Same: Form Of Action Against Principal
Where money paid to an unauthorized agent is turned over to the principal or mingled with his funds, it is clear that an action for money had and received will lie against the principal.1 Where the ag...
-Chapter V. Misreliance On Non-Existent Or Invalid Contract (Continued) : Altered Or Forged Negotiable Instruments
Sec. 80. (I) Mistake by drawee as to genuineness of body of instrument or of signature of drawer or indorser. Sec. 81. Same: Why is restitution denied where drawer's signature is forged ? Sec. 82. (1)...
-Sec. 80. (I) Mistake By Drawee As To Genuineness Of Body Of Instrument Or Of Signature Of Drawer Or Indorser
It appears to be well settled that money paid by the drawee of a negotiable instrument to the holder, under a mistake as to the genuineness of the body of the instrument,1 or of the signature of an in...
-Sec. 82. (1) The Conclusive Presumption Theory
It is commonly said that the drawee is conclusively presumed to know the signature of the drawer, and therefore pays at his peril. This theory, if it may be so called, is strongly suggested by Lord M...
-Sec. 83. (2) The Negligence Theory
Another explanation that has been offered is that in accepting or paying a bill the signature of the drawer of which is forged, the drawee is chargeable with negligence. 1 3 Burr. 1354. 2 1762, 3 Bu...
-Sec. 84. (3) The Equal Equities Theory
Professor Ames advanced and very ably supported the view that the drawee is denied a recovery, in case the signature of the drawer is forged, upon the principle that as between parties having equal eq...
-Sec. 85. (4) The Change Of Position Theory
Another suggested reason for denying relief is that in consequence of the drawee's payment of the bill, the holder loses the right of recourse against prior indorsers which the dishonor of the bill wo...
-Sec. 86. (5) The Theory That There Is No Mistake As To Drawee's Duty To Holder
The denial of relief has also been supported upon the ground that, although the payment is made in mis-reliance upon a supposed duty to the drawer, there is no mis-reliance upon a supposed duty to the...
-Sec. 87. (6) The Theory That The Rule Is One Of Policy
None of the theories set forth in the preceding sections seems satisfactorily to account for the denial of relief to the drawee in the case of the forgery of the drawer's signature. The true reason fo...
-Sec. 88. (7) The Rule Criticized
The doctrine of Price v. Neal, as it is called, has by no means escaped criticism. Many modern textwriters, said Mitchell, J., in Germania Bank v. Boutell,1 some of them of learning and ability, h...
-Sec. 89. (II) Mistake By Payor For Honor As To Genuineness Of Drawer's Signature
In the English case of Wilkinson v. John-son,5 one who paid for honor a bill on which the name of the A bill is carried for payment to the person whose name appears as acceptor, or as agent of an acc...
-Sec. 90. (III) Mistake As To Genuineness Of Payor's Signature
Where one pays to an innocent holder for value a bill or note on which his own name is forged, he is usually denied relief: Johnston v. Commercial Bank, 1885, 27 W. Va. 343; 55 Am. Rep. 315: Johnson,...
-Sec. 91. (IV) Mistake As To Genuineness Of Bill Of Lading Attached To Draft
Although the acceptor of a draft obviously cannot be expected to know the signature of the carrier's agent on a bill of lading accompanying the draft, it is held that money paid by the acceptor in rel...
-Sec. 92. (V) Effect Of Negligence
It is a general rule that one who confers a benefit by mistake will not be denied relief because of the fact that the mistake was the result of his own negligence (ante, Sec. 15). Accordingly, one who...
-Chapter VI. Misreliance On Contract Unenforceable Because of Statute Of Frauds
Sec. 93. In general. Sec. 94. (I) Misreliance on contract: Assumption of risk: Mistake of law. Sec. 95. (II) Retention of benefit inequitable: (1) When defendant defaults. Sec. 96. Same: Effect of ...
-Sec. 93. In General
The provisions of the fourth and seventeenth sections of the Statute of Frauds, 29 Car. II. c. 3, which with various modifications have been generally adopted in America, are familiar.1 To what contra...
-Sec. 94. (I) Misreliance On Contract: Assumption Of Risk : Mistake Of Law
If, in performing a contract unenforceable because of the Statute of Frauds, one is unconscious of any question as to its enforceability, his performance may properly be said to be in misreliance on t...
-Sec. 95. (II) Retention Of Benefit Inequitable: (1) When Defendant Defaults
When it is the defendant who fails to perform the unenforceable agreement, the plaintiff being willing to continue performance, the retention by the defendant of the benefit of the plaintiff's perform...
-Sec. 96. Same : Effect Of Tender Of Specific Restitution
In the Vermont case of Hawley v. Moody2 it was held that one who defaults after having received personal property in part performance of the contract cannot, without the consent of the other party, re...
-Sec. 97. Same: Liability Of Purchaser Or Lessee For Use And Occupation
A purchaser of land under an oral contract, who is given possession by his vendor and subsequently defaults, is liable for the value of whatever use and occupation of the premises he may have enjoyed....
-Sec. 98. Retention Of Benefit Inequitable: (2) When Plaintiff Defaults
When it is the plaintiff who makes default under the unenforceable contract, the defendant being willing to perform, the justice of a recovery in quasi contract by the plaintiff is not so clear. By th...
-Sec. 99. Same: In Jurisdictions Where Contract Is Void
In the jurisdictions in which non-compliance with the requirements of the Statute of Frauds is held to invalidate the contract instead of making it unenforceable, cases permitting a plaintiff in defau...
-Sec. 100. (III) Right To Restitution When Neither Party Defaults
If the plaintiff has completely performed the contract on his side, or has performed all of the terms which are conditions precedent to the defendant's obligation, and the defendant is ready and willi...
-Sec. 101. (IV) Right To Restitution When Contract Enforceable In Equity
It is nearly everywhere a settled doctrine of the courts of equity, resting upon their jurisdiction to prevent fraud, that an oral contract within the statute will be specifically enforced in favor of...
-Sec. 102. Same: Improvements On Land By Purchaser Or Lessee
In most jurisdictions the improvement of land by the purchaser under an oral contract is an act which enables him to enforce the contract in equity.1 Where this doctrine is accepted it may be thought ...
-Sec. 103. (V) Enforcement Of Restitution Not Against Policy: Admissibility Of Parol Evidence Of Contract
While the Statute of Frauds is in some jurisdictions regarded as completely nullifying contracts not conforming to its requirements (ante, Sec. 93), it is nowhere held that such contracts are illegal ...
-Sec. 104. (VI) Measure Of Recovery: Contract As Evidence Of Value
Since the obligation under discussion is essentially an obligation to restore a benefit received and not to compensate for an injury inflicted, the value of the benefit to the defendant, and not the c...
-Sec. 104. (VI) Measure Of Recovery: Contract As Evidence Of Value. Continued
1 See Keener, Quasi-Contracts, p. 313 n. 2 See McElroy v. Ludlum, 1880, 32 N. J. Eq. 828, 837, in which Depue, J., said: The policy of the statute is to prevent frauds which may be accomplished by...
-Sec. 106. Same: Deduction Of Benefit Received By Plaintiff
In order that the judgment may not enrich the plaintiff at the defendant's expense, the value of any benefit received by the plaintiff from the defendant must be deducted from the value of that confer...
-Sec. 107. Same : Improvements On Land
As has already been pointed out (ante, Sec. 102), in the case of improvements made by the purchaser or lessee of land at his own instance and for his own benefit, the seller or lessor is liable, if at...
-Sec. 108. (VII) Necessity Of Demand: Statute Of Limitations: Interest
If one who is himself in default under a contract within the statute is to be permitted under any circumstances to recover the value of his part performance from one who is ready and willing to perfor...
-Chapter VII. Misreliance On Contract Unenforceable Because Of Impossibility Of Performance
Sec. 109. In general. Sec. 110. Non-enforceability may result from prevention: (1) of plaintiff's performance, or (2) of defendant's performance. Sec. 111. (I) Plaintiff's performance prevented : In...
-Sec. 110. Non-Enforceability May Result From Prevention: (1) Of Plaintiff's Performance, Or (2) Of Defendant's Performance
The cases in which quasi contractual obligation may be claimed to result from the impossibility of performing a contract obviously fall into two classes: - first, those in which the plaintiff is preve...
-Sec. 113. Same : Presumption Rebuttable
If the presumption is indulged that the risk of default resulting from impossibility is not assumed by the plaintiff, it should be rebuttable by proof that the purpose of the condition precedent requi...
-Sec. 114. Same: Effect Of Express Stipulation
Where the contract contains an express stipulation to the effect that in case of the failure of the plaintiff to complete performance he shall be entitled to no compensation whatever, it seems fair to...
-Sec. 116. (A) Destruction Of Building In Course Of Improvement
It has been held in a number of cases that one who is prevented from completing the performance of a contract to alter, decorate, repair, or contribute to the construction of a building, by the destru...
-Sec. 117. Same: Upon Principle
The cases denying a recovery have the support of Professor Keener. Referring to one of the decisions in which relief was granted, Cleary v. Sohier,1 he says:2 As the plaintiff had not completed his c...
-Sec. 118. Same: Doctrine Of Niblo V. Binsse
In the New York case of Niblo v. Binsse,1 which has had some following elsewhere, a recovery for services rendered and materials used in setting up a steam engine and heating apparatus was allowed upo...
-Sec. 119. (B) Destruction Of Personalty In Course Of Alteration Or Repair
The case of the destruction of goods or chattels in the course of alteration or repair, without the fault of the bailee, is on all fours with that of the destruction of a building during the making of...
-Sec. 120. (C) Loss Of Goods In Course Of Carriage : Disablement Of Carrying Vessel
There appears to be little difference, in principle, between the case of the destruction of goods, without fault, while undergoing repair, discussed in the preceding section, and that of the loss of g...
-Sec. 121. (D) Loss Of Vessel In Course Of Seaman's Service
Under the maxim of the maritime law that Freight is the mother of wages, the safety of the ship the mother of freight, it was held that in case of the loss of the vessel during a voyage no wages wer...
-Sec. 122. (E) Illness Or Death Of Contractor
Since the illness or death of a contractor does not, like fire or shipwreck, deprive the defendant of the fruits of part performance, the benefit resulting from such part performance is more obvious a...
-Sec. 123. Same: Limitation Of Rule
In the case of the illness or death of one who has undertaken personally to manufacture or produce something for another, in the course of such manufacture or production and before the passing of titl...
-Sec. 124. (F) Act Of Government
Cases in which the performance contemplated by a contract is forbidden at the time the contract is entered into are treated in the chapter on contracts unenforceable because of illegality.2 Instances ...
-Sec. 125. (3) Measure Of Recovery
Ordinarily the plaintiff should be allowed to recover the reasonable worth of his part performance, less any payment or other benefit received from the defendant.3 In the case of improvements upon lan...
-Sec. 127. (II) Defendant's Performance Prevented: In General
Since, in the cases under consideration in this chapter, the defendant is protected against the contingency resulting in his failure to perform by an implied condition, he cannot be held responsible f...
-Sec. 128. (1) Recovery Of Prepaid Purchase Price Of Goods Or Land
Perhaps the most frequent application of the rule is to cases of the destruction of or injury to property while the subject of an executory contract of sale. In the case of personal property it is the...
-Sec. 129. (2) Recovery Of Prepaid Freight
The English courts have denied a quasi contractual recovery in one class of cases - that of freight prepaid, - basing their conclusion, apparently, upon the theory that the plaintiff assumed the risk ...
-Sec. 130. (3) Enforcement Of Restitution Impracticable: Part Payment Of Unapportionable Consideration
It has been held that if, at the time the impossibility occurs, the plaintiff has received part of the consideration for his performance, and the consideration is not apportionable, he can recover not...
-Sec. 131. (4) Enforcement Of Restitution Unjust: Change Of Position
In some interesting cases arising from the postponement of the great coronation processions and naval review in 1902, the English courts held that money paid in advance for the use of rooms or the hir...
-Chapter VIII. Misreliance On Illegal Contract
Sec. 132. In general. Sec. 133. (I) Misreliance on contract: Assumption of risk. Sec. 134. Same: Mistake of law. Sec. 135. (II) Enforcement of restitution against public policy. Sec. 136. Same: Li...
-Sec. 132. In General
Certain contracts which are regarded by the courts as obviously and seriously inimical to the interests of the state, as well as all contracts forbidden by the legislature, are said to be illegal. Sta...
-Sec. 133. (I) Misreliance On Contract: Assumption Of Risk
If, in performing an illegal contract, one is unconscious of any question as to its legality, his performance may properly be said to be in misreliance on the contract {ante, Sec. 10). And the fact th...
-Sec. 134. Same: Mistake Of Law
Usually, in this class of cases, the mistake - if there be a mistake - is one of law. Such must inevitably be the case when the illegality of the contract results from the character of the contract it...
-Sec. 135. (II) Enforcement Of Restitution Against Public Policy
Under the influence of the oft quoted maxim In pari delicto potior est conditio defendentis, the courts have established what may be said to be a general rule, though not free from exceptions, that a ...
-Sec. 136. Same : Limitations Of The Doctrine
The doctrine of the preceding section is generally regarded as inoperative: 1. When the plaintiff is ignorant of the fact which made the contract illegal. 1 Professor Wigmore, in discussing the doct...
-Sec. 137. (1) Plaintiff Ignorant Of Fact Which Makes Contract Illegal
If the plaintiff, when he confers the benefit sought to be recovered, is ignorant of the fact which makes his contract illegal, relief will be afforded. If the defendant is aware of the fact which bri...
-Sec. 138. (2) Plaintiff Not In Pari Delicto
In the case of a contract malum in se, it is said, no difference in degree of delinquency will be recognized. Thus, one who hired another to commit murder would not be allowed to recover the money pai...
-Sec. 140. (A) Where Prohibition Is Aimed At Defendant's Act
A statutory or common law prohibition under which a contract is held illegal may be said to be aimed at the act of the defendant rather than that of the plaintiff, either when it is primarily intended...
-Sec. 141. (6) Where Plaintiff Is Induced To Contract By Fraud Or Constraint
The second class of cases in which one party is regarded as the lesser offender consists of those in which, al- in which it appeared that the statute explicitly gave to the buyer of liquor sold in vio...
-Sec. 142. Same: The Doctrine Criticized
The rule that one who has been induced by fraud or forced by some sort of constraint to enter into an unlawful contract will be relieved from his engagement and allowed to recover money or property wi...
-Sec. 143. Order Of Proof As Test Of Par Delictum
There are occasional dicta to the effect that no claim will be allowed by the courts which cannot be established without proof of an illegal transaction.3 In most of the cases the claim sought to be e...
-Sec. 145. Same: The Doctrine Criticized
Professor Harriman contends 2 that the accomplishment or non-accomplishment of the illegal purpose is not a satisfactory test for determining whether or not one who rescinds should be allowed to recov...
-Sec. 146. Same: Illegal Purpose Accomplished In Part
The accomplishment of any part of the illegal purpose, it seems, effectively cuts off the right to recover: view to the defamation of M; and if A changed his mind before the execution of the contract,...
-Sec. 147. Same : Illegal Purpose Thwarted
A recovery will not be permitted, even though no part of the illegal purpose has been accomplished, if it appears that by reason of the intervention of the authorities or the action of a third person ...
-Sec. 148. (III) Illegal Transactions By Agent: Rights Of Principal
Money paid by a principal to his agent to be used in violation of law, and remaining in the agent's hands, may be recovered.1 Even if part of the money has been paid over or expended by the agent in f...
-Sec. 150. (V) Necessity Of Demand: Statute Of Limitations: Interest
Since the obligation in quasi contract arises as soon as the recipient of the benefit learns that he ought to make restitution (ante, Sec. 32), one who refuses to perform an illegal contract but who n...
-Sec. 151. (VI) Certain Contracts Separately Considered. (1) Marriage Brokage Contracts
In the early case of Smith v. Brun-ing,1 the Master of the Rolls, in ordering a marriage brokage bond to be given up, decreed that the sum of fifty guineas paid to one of the defendants be refunded. A...
-Sec. 152. (2) Wagering Contracts
In general, wagers were not regarded by the English courts as illegal or unenforceable at common law.1 Some American courts have taken the same view.2 As a result, however, of the steady growth of pub...
-Sec. 153. (3) Contracts Made Or To Be Performed On Sunday
The legality of contracts made or to be performed on Sunday is a question governed, in most jurisdictions, by statute. The enactments vary widely, as do their interpretations by the courts. The discus...
-Chapter IX. Misreliance On Illegal Contract (Continued) : Ultra Vires Contracts Of Corporations
Sec. 154. Two views of ultra vires contracts. Sec. 155. Difference in effect between two doctrines. Sec. 156. The illegality of ultra vires contracts peculiar: Do general rules apply ? Sec. 157. The...
-Sec. 154. Two Views Of Ultra Vires Contracts
It is now the favored doctrine that a corporation's capacity to contract is not limited by its charter but is coextensive with that of a natural person.1 However, in England, in the United States Supr...
-Sec. 155. Difference In Effect Between The Two Doctrines
In theory a contract void for want of contractual capacity is a legal nullity. It follows that full performance by one party will not make the contract enforceable against the other. A prohibited cont...
-Sec. 157. The Right To Restitution: (1) In England
The English courts are said to carry out the theory of special capacity with severe consistency. 1 Neither the authorization of an ultra vires contract by all the stockholders,2 nor their unanimous ...
-Sec. 158. Same: The English Doctrine As To Money Borrowed Ultra Vires
It appears to be settled that money borrowed ultra vires is not recoverable at law by the lender,4 unless it remains unused in the hands of the corporation.5 In equity, however, it is held that money ...
-Sec. 159. (2) In The United States Supreme Court
The Federal courts of the United States have not been as consistent as the English courts in their attitude toward ultra vires contracts.3 The Supreme Court, however, has steadfastly professed adheren...
-Sec. 159. (2) In The United States Supreme Court. Part 2
. . . The bank, if liable at all, is certainly liable in this case, for the value of the bonds at the time it refused, upon demand, to restore them. It was not in default, under the alleged contract,...
-Sec. 159. (2) In The United States Supreme Court. Part 3
1 Day v. Buggy Co., 1885, 57 Mich. 146; 23 N. W. 628; 58 Am. Rep. 352. And see Northwestern Union Packet Co. v. Shaw, 1875, 37 Wis. 655; 19 Am. Rep. 781. 2 Anglo-American Land, etc., Co. v. Lombard, ...
-Sec. 161. Enforcement Of Restitution Against Policy: Ultra Vires Contracts Of Municipal Corporations
It is a generally accepted rule of policy that a municipal corporation is under no obligation to make restitution for a benefit received under an ultra vires contract entered into by its officers, in ...
-Chapter X. Misreliance On Contract Unenforceable Because Of Plaintiff's Breach
Sec. 162. In general. Sec. 163 (I) The obligation to make restitution considered upon principle. Sec. 164. (1) Misreliance on contract: Assumption of risk. Sec. 165. Same: Breach of condition impli...
-Sec. 163. (I) The Obligation To Make Restitution Considered Upon Principle
Two objections may be urged against the recognition of a quasi contractual obligation in favor of one who has broken his contract. One, that the essential element of misreliance upon the contract is w...
-Sec. 164. (1) Misreliance On Contract: Assumption Of Risk
In one sense a contractor always assumes the risk of failure to discharge his obligation. For if he commits a breach he will be unable to enforce his contract and will himself be liable in damages....
-Sec. 165. Same : Breach Of Condition Implied In Law
Professor Keener has endeavored to establish a distinction between conditions expressed in the contract or implied in fact and conditions implied in law, holding that the condition implied in law is n...
-Sec. 166. (2) Retention Of Benefit Inequitable: Effect Of Willful Breach
It is a general rule, in cases of misreliance, that although all the other elements of obligation are present, proof of serious misconduct by the plaintiff toward the defendant will be held to justify...
-Sec. 167. Same: The Doctrine Of Britton V. Turner
The rule of no recovery for the willful contract breaker was challenged in the now famous New Hampshire case of Britton v. Turner,1 in which it was held that one who voluntarily abandons a con-tract o...
-Sec. 168. (A) The Argument As To Inequality
The first argument advanced is that the rule denying a recovery in quasi contract to one who voluntarily fails to perform a contract of service (which, the court concedes, has been considered the set...
-Sec. 169. (6) The Argument As To Injustice
The second ground of decision is that the rule denying a recovery is unjust in that its effect is to enable the defendant to retain a sum in excess of adequate compensatory damages for the plaintiff's...
-Sec. 170. (C) The Argument From Analogous Cases
The third point made by the court is that the case of service contracts is not distinguishable from those of building and sales contracts, in which one who commits a breach is permitted to recover in ...
-Sec. 171. (D) The Argument As To Severability Of Contract
The fourth and final ground of decision is that contracts of service, such as the one before the court, are usually intended by the parties to entitle the laborer to compensation for services rendered...
-Sec. 174. (1) Service Contracts
By a very pronounced weight of authority, an employee who has willfully abandoned his employment is without a remedy against his employer.1 There are several States, however, which follow the case of ...
-Sec. 175. (2) Building And Like Contracts
Under what is known as the doctrine of substantial performance - a doctrine which has its most frequent application in cases of building and like contracts - a contractor who in good faith endeavors t...
-Sec. 176. (3) Contracts For The Sale Of Goods
Contracts for the sale of goods differ from building and service contracts in that the buyer, upon the default of the seller after delivery of part of the goods, is often in a position to make restitu...
-Sec. 177. (4) Contracts For The Payment Of Money
Whether one who has agreed to buy land or goods, or who has contracted for the services of another, and has defaulted after part payment in advance, can recover the amount paid by him, less the value ...
-Sec. 178. (III) Measure Of Recovery
An examination of the cases in which a plaintiff in default is allowed to enforce a quasi contractual obligation shows that the judicial statement of the measure of damages is frequently, if not gener...
-Chapter XI. Misreliance On Supposed Requirement Of Valid Contract
Sec. 179. In general: Mistake as to terms of contract or fact affecting obligation to perform. Sec. 180. The right to recover money paid in performance of contract reformable in equity. Sec. 181. The ...
-Sec. 179. In General: Mistake As To Terms Of Contract Or Fact Affecting Obligation To Perform
The obligation resulting in various cases from the receipt of a benefit conferred in misre-liance upon a contract which turns out to be invalid or unenforceable has been considered in the preceding ch...
-Sec. 180. The Right To Recover Money Paid In Performance Of Contract Reformable In Equity
May one recover, in an action at law, money paid in excess of what was justly due the defendant, where it appears that such excess was called for by the terms of a written contract which is valid and ...
-Sec. 181. The Right To Recover Money Paid In Performance Of Parol Contract Which Does Not Express Intention Of Parties
The right of one to recover, in an action at law, money paid in performance of a written contract which, because of a mutual mistake in its formation, does not express the intent of the parties and is...
-Sec. 182. The Right To Recover Money Paid By Drawee Of Negotiable Paper Under Mistake As To State Of Drawer's Account
Money paid by the drawee of a negotiable instrument in the mistaken belief that the drawer's account shows a balance sufficient to meet the instrument is not recoverable.1 Most of the theories that ha...
-Chapter XII. Misreliance On Non-Contract Obligation
Sec. 183. In general. Sec. 184. Misreliance on duty incident to status. Sec. 185. Misreliance on duty as executor or administrator. ...
-Sec. 183. In General
Perhaps the greater number of primary legal duties, outside the field of contracts, are negative rather than positive, i.e. require one to refrain from acting rather than to act. There are many positi...
-Sec. 184. Misreliance On Duty Incident To Status
Of the class of cases under consideration in this chapter are those in which a recovery is sought for services rendered in the mistaken belief that the status of the plaintiff imposed upon him a duty ...
-Sec. 185. Misreliance On Duty Of Executor Or Administrator
Money paid by an executor under a mistake as to the terms of his testator's will,2 or in ignorance of the fact that the payee's legacy had lapsed,3 may be recovered. Although the rule was otherwise a...
-Chapter XIII. Misreliance On Ownership Of Property
Sec. 186. In general. Sec. 187. (I) Improvement of real property. Sec. 188. Same : Upon principle. Sec. 189. Same : Measure of recovery. Sec. 190. (II) Improvement of personalty. Sec. 186. In Gen...
-Sec. 187. (I) Improvement Of Real Property
It was the settled doctrine of the common law that an occupant of land makes improvements thereon at his peril. The reason given for this harsh doctrine was one of policy, viz. that any other rule wou...
-Sec. 188. Same : Upon Principle
Whether or not a recovery should be allowed in these cases is a question of some difficulty. The fear of the common law courts that to permit a recovery would be to place a premium upon heedlessness i...
-Sec. 190. (II) Improvement Of Personalty
With the same policy of discouraging heedlessness that led to the denial of relief in cases of the improvement of land, the common law has refused to permit one who, in the mistaken belief that he was...
-Part II Benefits Conferred Through Dutiful Intervention In Another's Affairs. Chapter XIV. General Principles And Sundry Instances Of The Obligation
Sec. 191. In general. Sec. 192. (I) Dutiful intervention. Sec. 193. (1) The discharge of another's obligation. Sec. 194. (a) Actual performance a matter of public concern. Sec. 195. (6) Default of...
-Sec. 191. In General
One of the principal classes of quasi contractual obligations in the Roman law was Negotiorum Gestio, a sort of spontaneous agency or justifiable intervention in another's affairs in his absence and...
-Sec. 192. (I) Dutiful Intervention
Broadly speaking, the ways in which one may intervene in another's affairs to the latter's advantage are multifarious. Acts of beneficial intervention which may result in quasi contractual obligation,...
-Sec. 194. (A) Actual Performance A Matter Of Public Concern
Professor Keener says that the obligation must be one which is imposed because of the interest which the public has in its performance. 1 This seems too broad, since it includes, apparently, any obl...
-Sec. 195. (B) Default Of The Obligor
The performance of another person's obligation is clearly not required, so long as there is a probability that the obligor will perform it with reasonable promptness himself. It follows that one who s...
-Sec. 196. (C) The Plaintiff An Appropriate Intervenor
The circumstances of a case not infrequently point to a particular person as the one who may with propriety intervene. Thus, in a case requiring the payment of funeral expenses, a relative, friend, or...
-Sec. 198. (II) The Receipt Of Benefit By Defendant
The performance of one's legal obligation is necessarily a benefit to him, since it saves him the necessity either of performing the duty himself or of paying the penalty of non-performance. The prote...
-Sec. 200. (IV) Sundry Instances Of The Obligation
For convenience, sundry instances in which the obligation may arise will be considered in the following groups: (1) Preservation of life. (2) Necessaries furnished infant or insane person. (3) Nece...
-Sec. 202. (2) Necessaries Furnished Infant Or Insane Person
The presumption that services rendered in the preservation of life are gratuitous arises only in cases of emergency. For necessaries of life furnished in a non-emergency case, therefore, the interveno...
-Sec. 203. (3) Necessaries Furnished (A) Wife Or (B) Children
(a) The husband is under a plain legal duty to support his wife, unless she lives apart from him without his fault. If he fails to perform this duty, one who furnishes necessaries to her may recover f...
-Sec. 204. (4) Necessaries Furnished Pauper
Municipal or county authorities are generally required by statute to furnish aid and support to paupers, although the enactments are far from uniform in their provisions. If, in a particular case, the...
-Sec. 205. (5) Burial Of The Dead: Obligation Of (A) Estate, (6) Husband, (C) County
(a) It is settled that the reasonable and necessary expenses of the interment of the body of a deceased person constitute a charge against his estate.4 The executor, therefore, should contract for suc...
-Sec. 206 (6) Preservation Of Property: Maritime Salvage
The familiar doctrine of salvage, in the admiralty law, affords a striking illustration of the principle of dutiful intervention as applied to the preservation of property.1 Salvage is defined as comp...
-Sec. 207. Same : Salvage At The Common Law
The doctrine of salvage is peculiar to admiralty law, the common law raising an irrebuttable presumption, based either upon considerations of policy or upon knowledge of normal human conduct, that ser...
-Sec. 207. Same : Salvage At The Common Law. Continued
By Sec. 1867 of the Civil Code of California, it is provided that the finder of a thing is entitled to compensation for all expense necessarily incurred by him in its preservation, and for any other ...
-Sec. 208. (7) Repairs By A Cotenant
If a tenant in common or joint tenant of a building makes repairs or alterations without the knowledge or against the wishes of his cotenant, the latter is obviously under no contractual obligation to...
-Sec. 209. (8) Performance Of Another's Contractual Duty
The prompt discharge of a contractual obligation is not ordinarily a matter of grave public concern. As a rule, therefore (see ante, Sec. 194), the default of a contractor will not warrant the interve...
-Sec. 210. (9) Performance Of Another's Statutory Duty To Repair Roads
In the recent and interesting English case of Macclesfield Corporation v. Great Central Railway Company,1 it was held that the district highway authorities could not recover expenses incurred in repai...
-Part III. Benefits Conferred Under Constraint. Chapter XV. Constraint Of Duress
Sec. 211. In general. Sec. 212. (I) What constitutes duress. Sec. 213. (II) Sundry instances of obligation, classified according to means of compulsion employed : Sec. 214. (1) Violence or imprisonm...
-Sec. 211. In General
As a matter of logical analysis, the obligation to restore a benefit conferred under compulsion exercised by the defendant should be regarded, not as a primary quasi contractual obligation, but as a s...
-Sec. 212. (I) What Constitutes Duress
The legal conception of duress, originally so narrow as to apply only to cases of imprisonment or serious violence to the person, or threats of such imprisonment or violence,2 has gradually expanded u...
-Sec. 214. (1) Violence Or Imprisonment: Duress Of Person
It is familiar law that money paid under constraint of actual or threatened physical harm, either to the plaintiff himself or to a member of his family, may be recovered.3 The same is true of money pa...
-Sec. 215. (2) Threat Of Legal Proceedings
The commencement of an action, as will be seen in the next chapter (post, Sec. 228), does not constitute duress. A fortiori, a threat of civil process is not duress and money paid or other benefits co...
-Sec. 216. (3) Seizure Or Detention Of Personal Property
Although there is a lingering doubt as to whether the wrongful seizure or detention of personal property should be regarded as sufficiently compulsive to make a contract secured thereby voidable at la...
-Sec. 217. (4) Assertion Of Fictitious Lien On Real Property Or Refusal To Discharge Valid Lien
Upon the same principle as governs cases of the seizure or detention of personal property (ante, Sec. 216), money extorted by the assertion of a fictitious or invalid lien upon real property or by a w...
-Sec. 218. (5) Injury To Business
Closely resembling cases of seizure or detention of property (ante, Sec. 216) are those of actual or threatened serious injury to business or employment. To imperil a man's livelihood, his business en...
-Sec. 219. (6) Oppressive Refusal To Discharge A Duty: (A) Illegal Fees Of Public Officers
Only under circumstances of peculiar hardship - as, for example, where a person's solvency is endangered - will a mere refusal by a private individual to discharge his legal duty to another be held to...
-Sec. 220. (6) Illegal Charges Of Public Service Corporations
Common carriers and some other public service corporations usually enjoy an advantage of position not unlike that of public officers. It is accordingly held that illegal freights, tolls, or other char...
-Sec. 221. Same: Necessity Of Protest
In nearly all of the cases cited in the preceding section the fact that the payment of the illegal charges was made under protest is shown. It is natural, of course, that a protest should be made. And...
-Sec. 222. (7) Oppressive Refusal To Loan Money At Legal Rate Of Interest
Although it appears to have been held at one time that usurious interest, i.e. interest in excess of the rate allowed by law to be charged, could not be recovered,2 the rule was long ago settled, in E...
-Sec. 223. Same : Right To Recover Usury: Upon Principle
Two distinct doctrines of quasi contract may be summoned to the support of the rule that usurious interest is recoverable. One is that an unjust enrichment resulting from the performance of an illegal...
-Sec. 224. Same: Right To Recover From Assignee Of Usurer
The assignee of a loan who collects from the borrower usurious interest on the principal is obviously in no better position than the original lender, and must make restitution. The same is true of the...
-Sec. 226. Same: Right Of Debtor To Have Usurious Interest Applied In Diminution Of Principal
In jurisdictions in which usurious interest paid by the debtor is recoverable, the debtor undoubtedly has the right to have such interest applied in diminution of the principal.1 Under statutes imposi...
-Sec. 227. Same: Recovery Of Usurious Interest Under National Bank Act
The Act of 1864,5 commonly called the National Bank Act, imposes as a penalty for the taking of usurious interest by national banks the forfeiture of all interest, and in or tenders the principal and ...
-Chapter XVI. Constraint Of Legal Proceedings
Sec. 228. (I) Constraint of commencement of action. Sec. 229. (II) Constraint of judgment: (1) In general: Res judicata. Sec. 230. (2) Void judgment. Sec. 231. (3) Judgment satisfied but not disch...
-Sec. 228. (I) Constraint Of Commencement Of Action
It is well settled that money paid with full knowledge of the facts in satisfaction of a claim on which action has been commenced, but no judgment obtained, is not recoverable.1 Various reasons have b...
-Sec. 229. (II) Constraint Of Judgment: (1) In General: Res Judicata
A payment made after the entry of adverse judgment may be claimed, with better reason, to be made under compulsion. But so long as the judgment remains, another obstacle to the recovery of money colle...
-Sec. 229. (II) Constraint Of Judgment: (1) In General: Res Judicata. Continued
This decision has been severely criticized and is often declared to have been overruled, in effect, by Marriot v. Hampton, supra, and subsequent cases: Carter v. First Ecclesiastical Society, 1820, 3...
-Sec. 232. (4) Judgment Subsequently Reversed
An action to recover money paid upon a judgment subsequently reversed is not open to the objection that it is an attempt to overhaul a prior judgment. The sole question is: was the payment made under ...
-Sec. 234. Same: Recovery From Whom
Money paid in satisfaction of a judgment subsequently reversed may be recovered from the judgment creditor, or, in case he was but a nominal plaintiff, from the person in whose interest the action was...
-Sec. 235. Same : Measure Of Recovery
Since a judgment, though erroneous, is valid and binding until it is reversed, the judgment creditor commits no wrong in proceeding to enforce it. In case of a subsequent reversal, therefore, he shoul...
-Sec. 236. Same: Reversal On Technical Grounds
Since it is essential to quasi contractual obligation that the defendant shall have received a benefit the retention of which is unjust, it would seem that the reversal of a judgment upon technical gr...
-Chapter XVII. Constraint Of Tax Or Assessment
Sec. 237. In general: Vacation or correction of tax or assessment as condition precedent to right of action. Sec. 238. (I) What constitutes constraint in collection of tax or assessment : (1) Duress ...
-Sec. 237. In General: Vacation Or Correction Of Tax Or Assessment As Condition Precedent To Right Of Action
Analogous to the case of money paid in satisfaction of a judgment (ante, Sec. 229 et seq.) is that of money paid under a void, illegal, or excessive tax or assessment. For boards of assessors and othe...
-Sec. 238. (I) What Constitutes Constraint In Collection Of Tax Or Assessment: (1) Duress Of Person Or Goods
Precisely what facts amount to compulsion, in these tax cases, is a question not free from difficulty. Actual arrest;1 threats of immediate arrest by one who has apparent authority;2 seizure and sale ...
-Sec. 239. (2) Sale Of Real Property: Cloud On Title
An actual or threatened sale of real property is not so coercive as one of personalty, since while personalty is actually seized the possession and enjoyment of real property is not immediately affect...
-Sec. 240. (3) Incumbrance Of Property
Where a tax is by statute made a lien on property, the payment of the tax, although invalid, in order to remove the apparent lien, may be regarded as a payment under compulsion (ante Sec. 217). This i...
-Sec. 241. (4) Prevention Of Recordation Of Deed
In some States the recorder is required by statute to refuse to accept a deed for record until the county auditor shall have certified that the taxes upon the land have been paid. There is a differenc...
-Sec. 242. (5) Interference With Business: Onerous Penalties
A threatened interference with the business of the taxpayer sometimes is,2 and sometimes is not,3 held to constitute duress 11894, 102 Mich. 528; 61 N. W. 15. 2 Swift Co. v. United States, 1884, 111 ...
-Sec. 243. (II) Retention Of Benefit Inequitable
In order to raise an obligation to make restitution, it must appear, of course, that the money paid has actually been received by the defendant,2 116 Blatchf. (U. S. C. C.) 299. 2 First Nat. Bank of...
-Sec. 244. (III) Necessity Of Protest: Interest
Protest will not make an otherwise voluntary payment involuntary.4 On the other hand, protest is not an essential element of compulsion.1 The law does not require a man to protest when a protest obvio...
-Sec. 246. (V) Statutory Remedy
In a number of States the return of illegal, excessive, and void taxes is expressly authorized by statute.7 Such statutes are regarded as mandatory, and public officers and boards may be compelled by ...
-Chapter XVIII. Constraint Of An Obligation Which, In Whole Or In Part, Defendant Ought To Have Discharged
Sec. 247. In general. Sec. 248. (I) Discharge of defendant's obligation to prevent sale of plaintiff's property. Sec. 249. Same: England v. Marsden and Edmunds v. Wallingford. Sec. 250. Same : Must...
-Sec. 247. In General
It has been seen that one who, under circumstances raising a moral duty, voluntarily discharges another's obligation, may recover in quasi contract for the benefit thereby conferred (ante, Sec. 193 et...
-Sec. 24s. (I) Discharge Of Defendant's Obligation To Prevent Sale Of Plaintiff's Property
It is well settled that money paid in discharge of another's obligation in order to prevent a sale of one's property or the sacrifice of one's property interests is recoverable: Exall v. Partridge, 1...
-Sec. 249. Same: England V. Marsden, And Edmunds V. Walling-Ford
In the case of England v. Marsden it was held by the English Court of Common Pleas, that a recovery would not be allowed where goods distrained and redeemed were upon the premises of the defendant for...
-Sec. 251. (II) Discharge Of Defendant's Obligation By Sale Or Sacrifice Of Plaintiff's Property
If money paid to prevent the sale of one's property in satisfaction of another's obligation may be recovered, it follows that in case of an actual sale the owner may either purchase his own property a...
-Sec. 253. (1) Right Of Surety To Indemnity
The obligation of the principal debtor, in the absence of an express undertaking, to indemnify his surety, had its origin in equity.2 Lord Mansfield had no hesitation, however, in enforcing it at law ...
-Sec. 254. (2) Right Of Surety To Contribution
The obligation of a surety to contribute, like that of the principal to indemnify his surety, was first recognized in equity1 and then adopted by courts of law.2 It is frequently said to be equitable ...
-Sec. 255. (3) Right Of Tort-Feasor To Contribution
It has long been a familiar maxim that as between joint tort-feasors contribution will not be enforced. This exception to the general rule had its origin in Merry weather v. Nixan,1 decided in 1799 an...
-Sec. 256. Same: Limits Of Rule
As between parties who have committed acts which they knew or ought to have known were wrongful, the rule is uniformly and unhesitatingly applied.3 1 8 Term R. 186. The exception was foreshadowed in ...
-Sec. 257. Same: Upon Principle
As a matter of justice between individuals, the case of tort-feasors is not distinguishable from that of cocontractors. Contribution is denied in the former case, however, for reasons of public policy...
-Sec. 258. (4) Right Of Tort-Feasor To Indemnity
The rules governing contribution between tort-feasors (ante, Sec. Sec. 255, 256) apply, mutatis mutandis, to cases of indemnity. Thus, whether an agent who has committed a tort under the direction of ...
-Sec. 259. (5) Nature Of The Tort-Feasor's Right To Indemnity Or Contribution
In so far as the right of a tort-feasor to indemnity or contribution has been recognized, it is enforced both in equity and at law. When there is no express contract, it is commonly rested upon the th...
-Part IV. Action For Restitution As Alternative Remedy For Repudiation Or Breach Of Contract And For Tort. Chapter XIX. Action For Restitution As Alternative Remedy For Repudiation Or Breach Of Contract
Sec. 260. In general: Is the obligation quasi contractual ? Sec. 261. (I) Origin of the doctrine. Sec. 262. (II) Scope of the doctrine: (1) Application to cases of goods sold or services rendered. Se...
-Sec. 261. (I) Origin Of The Doctrine
In the earlier days of the common law the only remedy for breach of contract was the action for compensatory damages. The right to elect restitution instead of compensation appears to have been recogn...
-Sec. 262. (II) Scope Of The Doctrine: (1) Limited Application To Cases Of Goods Sold Or Services Rendered
The doctrine has been invoked most frequently in the recovery of money paid.2 It 1 See Professor Williston, Dependency of Mutual Promises in the Civil Law, 13 Harv. Law Rev. 84, 94, 95; Wald's Poll...
-Scope Of The Doctrine: (1) Limited Application To Cases Of Goods Sold Or Services Rendered. Continued
If, however, the seller of goods agrees to take the buyer's bill or note, payable at a future day, he cannot bring indebitatus assumpsit upon the buyer's failure to give the bill or note, but must wai...
-Sec. 263. (2) Application To Cases Of Repudiation And To Cases Of Substantial Breach
It appears to be settled, both in England and America, that the repudiation of a contract, though unaccompanied by actual breach, justifies a demand for restitution: Hochster v. De la Tour, 1853, 2 E...
-Sec. 264. (3) Application To Cases Of Contracts Under Seal
There is some authority for the proposition that in the case of the renunciation or breach of a contract under seal the injured party may not elect to sue in assumpsit for restitution, but is confined...
-Sec. 265. (III) Restitution By Plaintiff As Condition Precedent
The right to restitution is said to be subject to the condition that the party seeking to exercise it shall first restore or offer to restore anything that he may have received under the contract.4 1...
-Sec. 265. (III) Restitution By Plaintiff As Condition Precedent. Continued
11903, 183 Mass. 279, 282 ; 67 N. E. 327. 2 1902, 181 Mass. 256; 63 N. E. 435. 3 1905, 123 Ga. 850, 854; 51 S. E. 760; 1 L. R. A. (N. S.) 379. In this case the court said: This is a general rule ...
-Sec. 266. (IV) What Constitutes An Election
As in other cases of alternative remedies, there is some difficulty in determining what constitutes such an election of one remedy as precludes a resort to the other.1 The prosecution of one remedy to...
-Sec. 267. (V) The Necessity Of Notice Or Demand: Statute Of Limitations
It is frequently stated that reasonably prompt notice of rescission is a prerequisite to the action for restitution, or that the election of restitution must be manifested without undue delay.6 An exa...
-Sec. 268. (VI) Measure Of Recovery
The theory of the remedy being that the parties should be placed substantially in statu quo, the measure of recovery is the value of the plaintiff's performance. In case the plaintiff is allowed to re...
-Sec. 269. Same : Effect Of Settlement Or Payment Pro Tanto
There are cases which hold that if, before rescission, the plaintiff was paid in full for a distinct part of his performance or there was a settlement of the amount due for a distinct part of his perf...
-Chapter XX. Action For Restitution As Alternative Remedy For Tort
Sec. 270. In general: Is the obligation quasi contractual ? Sec. 271. (I) Essential elements of the obligation : (1) The commission of a tort. Sec. 272. (2) The receipt of a benefit by the tort-feas...
-Sec. 271. (I) Essential Elements Of The Obligation: (1) The Commission Of A Tort
The phrase waiver of tort, commonly used to denote the election of assumpsit, is unfortunate. It implies that the wrong is waived, which is both inaccurate and misleading. To speak of a suit in equi...
-Sec. 272. (2) The Receipt Of A Benefit By The Tort-Feasor
It is fundamental that assumpsit cannot be maintained against a tort-feasor unless it appears that he has reaped a benefit from his wrongful act.1 In the consideration of this element of the obligatio...
-Sec. 275. Same: The Taking Of Intangible Things
Usually, if something has in reality been taken from the plaintiff, the fact is obvious. But where the tort consists of a wrongful use of another's property, and especially if it appears that the use ...
-Sec. 276. (II) Application Of Doctrine To Particular Torts
Although most frequently employed as a remedy for the conversion of goods, the action of assumpsit is available in a number of other cases. For the sake of clearness, the following torts to which the ...
-Sec. 278. Same : Goods Obtained By Fraud
There appears to be little difference between the position of one who has obtained goods by means of a fraudulent contract of purchase, subsequently disaffirmed by the seller, and the position of one ...
-Sec. 279. Same : Goods Or Money Received From A Converter
One who has acquired converted goods, either with notice of the conversion or without paying value, is himself guilty of conversion, and to the extent of the benefit derived from his wrong may be call...
-Sec. 280. Same : Goods Used And Returned
There is no doubt that the detention of another's goods, if based upon a negation of the owner's rights, is a conversion even though the goods are ultimately returned.4 It is equally clear that whethe...
-Sec. 281. (2) Deceit
It has been pointed out that obtaining goods by fraud constitutes conversion, and that consequently the victim of the fraud has the same right to elect assumpsit as in other cases of conversion (ante,...
-Sec. 282. Same : Inducing Void Marriage By False Representations
Fraudulently to induce one to enter into a void marriage is conceded to be an actionable wrong.1 And it has been held that the person aggrieved may waive the tort and sue in assumpsit for the value...
-Sec. 283. (3) Trespass On Land
Ordinarily a mere trespasser on land derives no benefit from his wrongful act and therefore may not be sued in assumpsit. If, however, he severs and removes timber, stone, minerals, soil, or any produ...
-Sec. 285. (4) Abduction Of Child Or Servant: Inducing Breach Of Contract
Where, either by force or by enticement, a minor child is taken from his parent, or an apprentice from his master, and compelled or induced to work for the benefit of his abductor, the parent or maste...
-Sec. 286. (5) False Imprisonment: Service Under Compulsion
If one who is guilty of the tort of false imprisonment is benefited by the labor which his victim is compelled to perform, he may, at the option of the plaintiff, be held responsible in assumpsit for ...
-Sec. 287. (6) Usurpation Of Office
The salary or fees appurtenant to a public office are said to follow the title to the office. The de jure officer, therefore, is entitled to such salary or fees as against an officer de facto, even th...
-Sec. 288. (7) Infringement Of Patent Rights
The usual and frequently the only adequate remedy, in case of the invasion of the exclusive rights secured by letters patent, is a suit in equity for an injunction and an accounting of profits.4 Where...
-Sec. 289. (III) The Liability Of Joint Tort-Feasors
In England, the liability of joint tort-feasors is joint;5 in America, joint and several.6 In either view, of course, no attention is paid, in assessing damages, to the actual division of the spoils. ...
-Sec. 290. (IV) Rights Of Owners In Common
It is generally held that in case of a tort against common owners or tenants of property they must sue jointly, whether they elect to seek damages or restitution: Irwin's Admr. v. Brown's Extrs., 186...
-Sec. 292. (VI) Measure Of Recovery
In the preceding discussion of the various torts in which there is an election to sue for restitution, the measure of recovery has from time to time been stated. It is fundamental that the plaintiff's...
-Sec. 293. Same : Interest
The plaintiff is entitled to interest from the time when the principal sum recovered by him ought to have been paid, - in other words from the date when the cause of action arose. This has been though...
-Sec. 294. (VII) Statute Of Limitations
The statutory period which bars actions for tort is frequently, if not generally, different from that which bars actions on contract. The question arises, therefore: is an action against a tort-feasor...
-Sec. 295. (VIII) Effect Of Judgment Against One Of Two Tortfeasors
Whether the pursuit of one remedy to a judgment against one tort-feasor will prevent a subsequent resort to the alternative remedy against another may depend upon whether there is a separate election ...
-Sec. 296. (IX) Effect Of Judgment In Favor Of One Of Two Alleged Tort-Feasors
It has been suggested that a judgment adverse to the plaintiff in an action against one of two alleged joint wrongdoers should bar any further action against the other, for two reasons: First, the pl...
-Sec. 298. (XI) What Constitutes An Election
What constitutes an election between the right to recover damages and the right to restitution is a question not free from difficulty. An unsatisfied demand for the proceeds of a conversion, either up...
-Sec. 299. Same: The Case Of Joint Tort-Feasors
As has been stated, the obligation of joint wrongdoers to pay damages is held in America to be joint and several; while the obligation to make restitution, upon principle at least, is several (ante, S...
-Sec. 300. Same: The Case Of Successive Converters
If it is true, as contended in the preceding section, that there is a separate election against each of two or more joint tort-feasors, it would seem to follow that in case of successive converters of...









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