Same - Part Performance Of Unenforceable Or Void Agreement

Where an agreement is not illegal, but merely void, or unenforceable, and one of the parties refuses to perform his promise after performance or part performance by the other, the law will create a promise to pay for the benefits received. If a man delivers goods, or conveys land, or renders services for another under a contract which is void or unenforceable, but not illegal, he may recover on the quantum valebat or quantum meruit.37 Such is the case with contracts which are unenforceable because of noncompliance with the statute of frauds.38

A party, however, who has partly performed a contract which is merely unenforceable and not illegal, cannot, by the weight of authority, abandon it, and recover for the part performance, if the other party is willing to carry out the contract.39

34 Ante, pp. 425, 431. 35 Ante, pp. 428, 431.

36 Roller v. Murray, 112 Va. 780, 72 S. E. 665, 38 L. R. A. (N. S.) 1202, Ann. Cas. 1913B, 10S8. For criticism of rule, see Woodward, Quasi Cont 214, and article by Professor J. H. Wigmore, 25 Am. Law Rev. 712. See "Contracts," Dec. Dig. (Key-No.) § 138; Cent. Dig. §§ 681-700.

37 Nugent v. Teachout, 67 Mich. 571, 35 N.W. 254; Patten v. Hicks, 43 Cal. 509; Rebman v. Water Co., 95 Cal. 390, 30 Pac. 564; Ellis v. Cory, 74 Wis. 176, 42 N. W. 252, 4 L. R. A. 55, 17 Am. St Rep. 125; Lapham v. Osborne, 20 Nev. 168, 18 Pac. 881; Smith v. Wooding, 20 Ala. 324; Little v. Martin, 3 Wend. (N. Y.) 219, 20 Am. Dec. 688; Montague v. Garnett, 3 Bush (Ky.) 297; ante, p. 119. See "Work and Labor," Dec. Dig. (Key-No.) § 10; Cent. Dig. § 25.

38 See cases above cited.

39 Philbrook v. Belknap, 6 Vt. 383; Galway v. Shields, 66 Mo. 313, 27 Am. Rep. 351; Ketchum v. Evertson, 13 Johns. (N. Y.) 359, 7 Am. Dec. 384; Collier v. Coates, 17 Barb. (N. Y.) 473; Greton v. Smith, 33 N. Y. 245; Nelson v.

Same - On Rescission Of Contract

As we have seen, if a person has obtained money from another under an agreement which the latter has the right to rescind on the ground of fraud, duress, or undue influence, or on the ground of want or failure of consideration, or want of capacity to contract, or because of a breach of his contract by the other operating as a discharge, he may, on rescinding the contract, recover the amount paid as money received for his use.40 So, by the weight of authority, where a person, for like reasons, rescinds a contract which he has partly performed by the rendition of services, he may recover for the services on a promise created by law because of their receipt and the benefit conferred.41

The existence of the special contract in these cases which has been rescinded precludes the implication of any other contract in fact. The obligation, therefore, is necessarily imposed by law.

Shelby Manuf'g & Imp. Co., 96 Ala. 515, 11 South. 695, 38 Am. St Rep. 116; McKinney v. Harvie, 38 Minn. 18, 35 N. W. 668, 8 Am. St. Rep. 640; Sennett v. Shehan, 27 Minn. 328, 7 N. W. 266; Kriger v. Leppel, 42 Minn. 6, 43 N. W. 484; Sims v. Hutchins, 8 Smedes & M. (Miss.) 331, 47 Am. Dec. 90; Abbott v. Inskip, 29 Ohio St. 59; Shaw v. Shaw, 6 Vt. 69; Plummer v. Bucknam, 55 Me. 105; Clark v. Terry, 25 Conn. 395; Hawley v. Moody, 24 Vt. 605; Richards v. Allen, 17 Me. 296; ante, p. 160. Contra, King v. Welcome, 5 Gray. (Mass.) 41 (but see Riley v. Williams, 123 Mass. 506); Koch v. Williams, 82 Wis. 186, 52 N. W. 257. See "Work and Labor," Dec. Dig. (Key-No.) § 14; Cent. Dig. §§ 29-38; "Contracts," Cent. Dig. §§ 1476-1478, 1500, 1506, 1508, 1551

40 Ante, p. 630..

41 Palanche v. Colburn, 8 Bing. 14; Ex parte Maclure, L. R. 5 Ch. App. 737; Seipel v. Insurance Co., S4 Pa. 47; Gaffney v.Hayden, 110 Mass. 137, 14 Am. Rep. 580; Medbury v. Watrous, 7 Hill (N. Y.) 110; Williams v. Bemis, 108 Mass. 91, 11 Am. Rep. 318; Brown v. Railway Co., 36 Minn. 236, 31 N. W. 941; Shane v. Smith, 37 Kan. 55, 14 Pac. 477; ante, p. 647. See "Work and Labor," Deo. Dig. (Key-No.) § 14; Cent. Dig. §§ 29-33.