Same - Retaining Benefits

Where benefits are conferred by one person on another under such circumstances as to raise no promise in fact or in law to pay for them, he may nevertheless become liable by retaining them. If a person, for instance, were to receive goods from another, reasonably but mistakenly believing them to be intended as a gift, and, after learning of his mistake, should retain them, when he might return them, or, by the weight of authority, if he should receive part of the goods purchased from another, and retain them after failure of the latter to supply the rest of the goods, the law would compel him to pay for them.81 And the same rule would apply where benefits are in any other way received under such circumstances as to create no contractual obli-tion, and are retained when they should in justice be returned. If, however, the benefits thus received are incapable of being returned, as where they consist of services, or of material which has been used in repairing a house,82 it would seem that no liability should be created. If a man engages a servant for a specified time, and agrees to pay him if he works for that time, his rendition of the services is a condition precedent to his right to recover for them on the contract. If he leaves his employer's service, without excuse, before the time has expired, he certainly cannot recover on the contract without a violation of the plainest principles of the law of contract. The master cannot return the benefit he has received from the part performance, and he should not be held liable to pay for it. Some courts allow the servant to recover on the quantum meruit, though he has broken his contract without excuse. The weight of authority, however, is to the contrary.33

Ganong & Chenoweth v. Brown, 88 Miss. 53, 40 South. 556, 117 Am. St. Rep. 731. See "Work and Labor," Dec. Dig. (Key-No.) § 11,; Cent. Dig. §§ 23-33.

30 Cutter v. Powell, 6 Term R. 320; Appleby v. Dods, 8 East, 300. See "Work and Labor," Dec. Dig. (Key-No.) § 9; Cent. Dig. §§ 23-33.

31 Oxendale v. Wetherell. 9 B. & C. 28G, and cases cited, ante, p. 568, note 80. But see, contra, Champlin v. Rowley, 18 Wend. (N. Y.) 187, and cases cited, ante, p. 568, note SO. See "Contracts," Dec. Dig. (Key-No.) § 27; Cent. Dig. §§ 121-132.

32 Ante, p. 540. 33 Ante, p. 579.

Same - Part Performance Of Illegal Contract

Difficult questions have arisen where it has been sought to recover for benefits conferred under an illegal contract. We have already-seen that an action for money had and received will lie to recover money paid under an illegal contract which has not been carried out, provided the illegal object has not been effected by the mere payment of the money, and provided the object is malum prohibitum, and not malum in se.34 We have also seen that in certain cases the parties to an illegal contract are not regarded as being in pari delicto, and that the person who is the less guilty is allowed to recover what he has paid under the contract.38 So, also, where a person has performed services under an illegal contract, and he is not in pari delicto with the other party, he may be allowed to recover what the services are worth. Where, however, an illegal contract has been performed, and the illegal object effected, neither party, if he knew of the illegality, can recover for the benefits conferred upon the other.36