As we have seen in treating of discharge of contract by breach, a party to a contract is not discharged from liability to perform by the failure of the other party to perform a part of his promise which is merely subsidiary, and does not go to the essence of the contract; nor, where a contract consists of several promises based on several considerations, so that the promises are divisible, does a failure to perform one or more discharge the other party from liability to pay for those that have been performed. In these cases the party thus partially in default may recover for what he has done, leaving the other party to recover damages from him for his partial breach. The recovery is on the contract itself. Where, however, the breach is not merely of a subsidiary promise, or of one or more of several promises, but of a term which the parties regarded as of the essence of the contract, or there is a failure to fully perform an indivisible prom- • ise, the question arises whether the other party is liable for the benefits he has received from the partial performance. That he is not liable on the contract itself is clear, for he can only recover on it by showing that he has substantially performed what he has agreed to perform as a condition precedent to the other's liability. The other party has not agreed to pay him for a partial performance, and any liability must be created by the law without agreement, or quasi ex contractu.
Under certain circumstances such a liability is created. The right to recover is based, not on principles of the law of contract, but on equitable principles; and it would be beyond the scope of our work to go into the subject at any length. It must suffice to call attention to a few of the most important cases in which such a recovery has been allowed. Where a person has willfully refused or failed to fully perform a contract which he was bound to perform, it is clear that he should not, and cannot, recover, for what he has performed under it.28 If his default was not willful, but because of sickness, death, prevention by the other party, or any other cause, not arising from his own fault, and excusing the breach, then he can recover from the other party on a promise created by the law to pay for the benefits he has received from the part performance.29 And, by the weight of authority, where one of the parties to a contract has endeavored in good faith to perform it, and has substantially done so, and thereby conferred a substantial benefit on the other party, though he has failed to perform the contract in some particulars, he may recover what the partial performance is reasonably worth, having regard, however, to the contract price.27 In England, and in some jurisdictions in this country, a recovery is not allowed for improvements on a building which is destroyed without fault of the contractor before the completion of the contract; 28 but by the weight of American authority recovery may be had in such a case for the value of the work performed.28
23 Russell v. Bell, 10 Mees. & W. 340; Willson v. Foree, 6 Johns. (N. Y.) 110, 5 Am. Dec 195; Toledo, W. & W. Ry. Co. v. Chew, 67 I11. 378; Aldine Mfg. Co. v. Barnard, 84 Mich. 632, 48 N. W. 280; Goodwin v. Griffis, 88 N. Y. 629; Walker v. Duncan, 68 Wis. 624, 32 N. W. 689; Lehmann v. Schmidt, 87 Cal. 15, 25 Pac. 161; Blalock v. Phillips, 38 Ga. 216; Dietz's Assignee v. Sut-cliffe, 80 Ky. 650; Morford v. White, 53 Ind. 547; Newton Mfg. Co. v. White, 53 Ga. 395; Evans v. Miller, 58 Miss. 120, 38 Am. Rep. 313; Logan v. Wallis, 76 N. C. 416. See "Action," Dec. Dig. (Key-No.) § 28; Cent. Dig. §§ 196-215; "Assaumpsit," Cent. Dig. §§ 42-54.
24 Jones v. Hoar, 5 Pick. (Mass.) 285; Allen v. Ford, 19 Pick. (Mass.) 217; Androscoggin Water Power Co. v. Metcalf, 65 Me. 40; Bethlehem Borough v. Fire Co., 81 Pa. 445; Sandeen v. Railroad Co., 79 Mo. 278; Galloway v.
Holmes, 1 Doug. (Mich.) 330 (but see Aldine Mfg. Co. v. Barnard, 84 Mich. G32, 48 N. W. 280); Winchell v. Noyes, 23 Vt. 303; Strother's Adm'r v. Butler, 17 Ala. 733; Ferguson v. Carrington, 9 Barn. & C. 59. But see Russell v. Bell. 10 Mees. & W. 340. See "Action," Dec. Dig. (Key-No.) § 28; Cent. Dig. §§ 196-215: "Assumpsit." Cent. Dig. §§ 42-54.
25 Ante, pp. 539, 578, 579, and cases cited in notes 19, 20; Carbon Hill Coal Co. v. Cunningham, 153 Ala. 573, 44 South. 1016. See "Work and Labor," Dec. Dig. (Key-No.) §§ 9, 14; Cent. Dig. §§ 23-83.
26 Wolfe v. Howes, 20 N. Y. 197, 75 Am. Dec. 388; Robinson v. Davison, L. R. 6 Exch. 269; Boast v. Firth, L. R. 4 C. P. 1; Spalding v. Rosa, 71 N. Y. 40, 27 Am. Rep. 7; Jones v. Judd, 4 N. Y. 412; Lakeman v. Pollard, 43 Me. 463, 69 Am. Dec. 77; Green v. Gilbert, 21 Wis. 395; Clark v. Gilbert, 26 N. Y. 279, 84 Am. Dec. 189; Martus v. Houck, 39 Mich. 431, 33 Am. Rep. 409; Jennings v. Lyons, 39 Wis. 553, 20 Am. Rep. 57; Pinches v. Lutheran Church, 55 Conn. 183, 10 Atl. 264; Shultz v. Johnson, 5 B. Mon. (Ky.) 497; Adams v. Crosby, 48 Ind. 153; Harrington v. Iron-Works Co., 119 Mass. 82; Stewart v. Loring, 5 Allen (Mass.) 306, 81 Am. Dec. 747; Fuller v. Brown, 11 Mete. (Mass.) 440; Hayward v. Leonard, 7 Pick. (Mass.) 181, 19 Am. Dec. 268: Scully v. Kirkpatrick, 79 Pa. 324, 21 Am. Rep. 62; Allen v. Baker, 86 N. C. 91, 41 Am. Rep. 444; Gilman v. Hall, 11 Vt 510, 34 Am. Dec. 700; Fenton v. Clark, 11 Vt. 557; Hubbard v. Belden, 27 Vt 645; Yerrington v. Green, 7 R. I. 589, 84 Am. Dec. 578; Norris v. School Dist, 12 Me. 293, 28 Am. Dec. 182; Wadleigh v. Town of Sutton, 6 N. H. 15, 23 Am. Dec, 704; Mooney v. Iron Co., 82 Mich. 263, 46 N. W. 376; Parker v. Macomber, 17 R. I. 674, 24 Atl. 464, 16 L. R. A. 858; ante, p. 586. See "Work and Labor," Dec. Dig. (Key-No.) § 9; Cent. Dig. §§ 23-33.
27 Ante, p. 539.
28 Appleby v. Myers, L. R. 2 C. P. 651; Huyett Mfg. Co. v. Chicago Edison Co., 167 I11. 233, 47 N. E. 384, 59 Am. St. Rep. 272; Krause v. Bd. of Trustees, 162 Ind. 278, 70 N. E. 264, 65 L. R. A. Ill, 102 Am. St. Rep. 203, 1 Ann. Cas. 460. See "Work and Labor," Dec. Dig. (Key-No.) § 14; Cent. Dig. §§ 23-53.
29 Young v. City of Chicopee, 186 Mass. 518, 72 N. E. 63; Hayes v. Gross, 9 App. Div. 12, 40 N. Y. Supp. 1098 [affirmed 162 N. Y. 610, 57 N. E. 1112];
If, by the express terms of the contract, there is no liability except upon a full performance, there can be no recovery for a part performance, even where the contract is divisible, and a full performance is prevented by death or other cause beyond the control of the parties. The terms of the express contract exclude the arising of any such implied contract as could form the basis of a claim upon a quantum meruit.80