Few questions in the law have given rise to more discussion and difference of opinion than that concerning the right of one who has materially broken his contract without excuse to recover for such benefit as he may have conferred on the other party by part performance of an indivisible contract (or an indivisible fraction of a divisible portion of a contract). A satisfactory solution is not easy, for two rules of fundamental legal policy seem here to come in conflict. On the one hand, it seems a violation of the terms of a contract to allow a plaintiff in default to recover - to allow a party to stop when he pleases and sell his part performance at a value fixed by the jury to the defendant who has agreed only to pay for full performance. On the other hand, to deny recovery often gives the defendant more than fair compensation for the injury he has sustained and imposes a forfeiture on the plaintiff. It may be supposed that the plaintiff in partial performance of his obligations has given the defendant land, goods, labor and materials, money or services. The first case supposed is not of common occurrence, but it is entirely possible. Except that recovery of the land by equitable proceedings may be possible, there is no reason why it should not be dealt with in the same way as a case where goods have been delivered; and the cases relating to personal property discussed in the following section may serve as guiding authority. Generally the purchaser of land will still be in a position to return the land or its proceeds when it becomes apparent that the plaintiff will not make full performance.
Sec.Sec.481, 487.] Sec.463. If a promised quality in the thing sold was absent at the time of the purchase [not 'at the time when the risk passes,' as in the case provided for by section 459], the purchaser may demand compensation for non-performance, instead of rescission or reduction. The same rule applies if the seller has fraudulently concealed a defect. Sec. 464. If the purchaser accepts a defective thing although he knows of the defect, he is entitled to the claims specified in sections 462, 463, only if on acceptance he reserves his rights on account of the defect. Sec. 465. Rescission or reduction is affected if the seller, on demand [such a demand amounts to a proposal which is binding on the purchaser, Sec. 145] by the purchaser, declares his consent thereto. Sec.466. If the purchaser asserts against the seller a defect of quality, the seller may offer rescission and require him to declare within a fixed reasonable period whether he demands rescission. In such a case rescission may be demanded only before the expiration of the period. [After the expiration of the period reduction is the only remedy open to the purchaser, except in the case of the sale of a thing designated by species. Sec. 480.] "
21 Sect. 39. When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.
See also sect. 53, which allows rescission because of prevention of performance, and sect. 107, which allows a vendor who has parted with title but retained a lien to make a resale of the goods.
It should be said, however, that the court in Sooltan Chund v. Schiller, 4 Indian L. R. (Calcutta Series), 252, showed a tendency to restrict the effect of sect. 39.
22 Oxendale v. Wetherell, 9 B. A C. 386, 387; Waddington v. Oliver, 2 B. A P. (N. S.) 61; Colonial Ins. Co. v. Adelaide Iota. Co., 12 A. C. 128, 138, 140; Kelso v. Ellis, 224 N. Y. 528, 121 N. E. 364.
23 Benjamin, Sale (5th Eng. ed.), 607; Polhemus v. Heiman, 45 Cal. 573; Bamberger v. Burrows, 145 la. 441, 124 N. W. 333. Cf. Bigelow v;. Barnes, 121 Minn. 148, 140 N. W. 1032, 45 L. R. A. (N. S.) 203.