The principle governing contracts for a particular piece of work are the same as those governing more general contracts of employment. If the work is done according to the contract30 or if, though not completed, there is no saving to the contractor by being relieved from finishing it,31 the contractor is entitled to recover the contract price. So the plaintiff even though himself in default may recover where a division of performance, for which a separate price is promised, has been rendered; 32 and wherever a payment has become due under a contract which is still in force, though the contract is not strictly divisible, a contractor who is not in default may recover the payment in full.33 Where there are no divisible payments due and unpaid, a contractor who is not in default should recover the total price promised less the cost of completing the work.34 This will put him in as good a position as he would have been in had there been no breach. As it is sometimes easier to prove the total cost of a whole building or construction than the cost of completion, the rule is sometimes stated that the builder may recover the total contract price for the building less the total cost, plus the expense already incurred.35 The latter statement is unobjectionable if it is remembered that it is merely a way of applying the rule, as previously stated, and not a device for giving the contractor on principles of quasi-contract the value of what he has done in addition to a contractual right to profit,36 but not infrequently courts combine in a way that cannot be justified a right to prospective profits on the contract with a right to recover past expenditures.37 The injured plaintiff should elect between rescission with restitution of the value of what he ha? given and an action on the contract for what he would have received. If the contractor himself has made some breach of contract but not such as to deprive him entirely of his right of recovery, the employer may take advantage of this by recoupment or counterclaim.38 These principles are applicable to all kinds of contracts for a particular piece of work; for instance, where a charter-party is broken by the failure of the charterer to load the vessel39
826; Hopkins v. Gooderham, 10 Brit. Col. 250. In New York the decisions of the lower courts several times restricted the plaintiff's damages to the time of trial, and these decisions were warranted by a dictum in Everson v. Powers, 89 N. Y. 527, 528, but in a carefully considered decision, the Appellate Division of the Supreme Court adopted the logical rule. Davis v. Dodge, 126 N. Y. App. Div. 460, 110 N. Y. S. 787.
30 St. Louis Ac. R. v. Hall, 186 Ala. 353; McGuire v. J. Neils Lumber Co., 97 Minn. 203, 107 N. W. 130.
31 Ware v. Cortland Ac. Co., 102 N. Y. 439, 85 N. E. 666, 22 L. R. A. (N. S.) 272, 127 Am. St. 914; United Merchants etc. Co. v. American Ac. Co., 71 N. Y. Misc. 457, 128 N. Y. 8. 666. 8ee also Phelps v. La Salle Hotel Co., 209 III. App. 430.
32 See supra, Sec. 1030.
33 Crabtree v. Hagenbaugh, 25 01. 233, 79 Am. Deo. 324; Schillings p. Bosch Ryan Grain Co., 145 la. 760,122 N. W. 961; Bailey v. Fredonia Gas Co., 82 Kan. 746, 109 Pac. 411; Milske v. Steiner Ac. Co., 103 Md. 235, 63 Atl. 471, 5 L. R. A. (N. S.) 1105, 115 Am. St. Rep. 354; Beatty v. Howe L. Co., 77 Minn. 272, 79 N. W. 1013; Perry o. Dickerson, 85 N. Y. 345, 39 Am. Rep. 663; Keel v. East Carolina, etc., Construction Co., 143 N. C. 429, 55 S. E. 826; Ulton v. Gates Ac. Co., 140 Wis. 197, 121 N. W. 331.
34 Millen v. Gulesian,229 Mass. 27, 118 N. E. 267; Shapiro v. Mollet, 168 N. Y. S. 723; Spearin v. United States, 61 Ct. Cl. 155.
35 Warner v. McLay, (Conn. (1918), 103 Atl. 113. See also United States v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168; Fox v. Harding, 7 Cush. 523.
Where the contractor fails to keep his agreement, the measure of damages is always the sum which will put his employer, the plaintiff, in as good a position as if the contract had been performed. Sometimes the sum will be based on the market price of the performance, which will generally be shown by the cost of getting the work done or completed by another person.40
36 K the contract price of the work is 110,000, and x = the cost of the work which has been done, and y =the cost of what remains to be done the proper formula for the plaintiff's re covery is $10,000 - y, but the same remit is obtained from the formula criticised in the text, of x + $10,000
-(x + y) But if the fair value of what has been done is not identical with the actual cost to the builder, it is important in applying the second formula to give x the same meaning in both places where it occurs.
37 See, e. g.t Berry v. Huntington Assoc, 80 W. Va. 342, 03 8. E. 356.
38 Waktrom v. Oliver-Watts Const. Co, 161 Ala. 608, 60 So. 40; Sheldon v Leahy, 111 Mich. 20, 60 N. W. 76.
39 In Inehidfiftu v. Cairns, 171 Fed. 233, the court said: "Scrutton on Charter Parties, pp. 271, 272, states the English rule: 'In an action against charterer for not loading a cargo, the measure of damage is the amount of the freight which would have been earned under the charter, after deducting the expenses of earning it, and also any net profit the ship may have earned during the period of the charter. It is probable that any freight the ship might have earned by reasonable diligence after the final breach is to be deducted also S'ee also Jordan v. Eaton, Fed. Cas. No. 7620; Watts p. Camors, 10 Fed. 146, affirmed in 116 U. S. 363, 6 S. C. Rep. 91, 29 L. Ed. 406."
40 Marcus v. Myers, 11 T. L. Rep. 327; Plunkett v. Meredith, 72 Ark. 3, 77 S. W. 600; World's Columbian Exp. v. Pasteur Ac. Co., 82 111. App. 04;
But consequential or special damages may also be recovered when they were foreseeable when the contract was made.41