The element of forfeiture in wholly denying recovery to a plaintiff who is materially in default is most strikingly exemplified in building contracts. It has already been seen 32 how, under the name of substantial performance, many courts have gone beyond the usual principles governing contracts in allowing relief in an action on the contract. But many cases of hardship cannot be brought within the doctrine of substantial performance, even if it is liberally construed; and the weight of authority strongly supports the statement that a builder whose breach of contract is merely negligent, can recover the value of his work less the damages caused by his default;33 but that to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts or retains the goods so delivered, knowing that the seller is not going to perform the contract in full, he must pay for them at the contract rate. If, however, the buyer has used or disposed of the goods delivered before he knows that the seller is not going to perform his contract in full, the buyer shall not be liable for more than the fair value to him of the goods so received.

(2) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate.

(3) Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole.

(4) The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties.

This section is borrowed from section 30 of the English statute with some changes. In subsection (1), the last sentence is not contained in the English act, nor are the words in the first sentence "knowing that the seller is not going to perform the contract in full."

32 Supra, Sec. 805.

33 Dermott v. Jones, 23 How. 220, 16 L. Ed. 442; Thomas v. Ellis, 4 Ala. 108; Davis v. Badders, 95 Ala. 348, 10 So. 422; Bertrand v. Byrd, 5 Ark. 651; Katz v. Bedford, 77 Cal. 319, 19 Pac. 523, 1 L. R. A. 826; Bush v. Finucane, 8 Colo. 192, 6 Pac. 514; Pinches v. Swedish Church, 55 Conn. 183, 10 Atl. 264; Everroad v. Schwarzkopf, 123 Ind. 35, 23 N. E. 969; ;Etna Iron, etc., Works v. Kossuth County, 79 la. 40, 44 N. W. 215; Keys v. Garben, 149 la. 394,128 N. W. 337; White v. Oliver, 36 Me. 92; Cormier v. Brock, 212 Mass. 292, 98 N. E. 1038; Hooper v. Cuneo, 227 Mass. 37, 116 N. E. 237; Sherman v. Bumnton, 228 Mass. 139, 117 N. E. 33; Howell v. Medler, 41 Mich. 641, 2 N. W. 911; Eaton v. Gladwell, 121 Mich. 444, 80 N. W. 292; Germain v. Union School Diat, 158 Mich. 214,122 N. W. 524, 123 N. W. 798; Yeats v. Ballentine, 56 Mo. 530; Decker v. School Dist., 101 Mo. App. 115, 74 S. W. 390; McMillan v. Malloy, 10 Neb. 228, 4 N. W. 1004, 35 Am. Rep. 471; one who has wilfully abandoned or broken his contract cannot recover.34 The classical English doctrine, it is true, has denied recovery altogether where there has been a material breach even though it was due to negligence rather than wilfulness;86 and a few decisions in the United States follow this rule, where the builder has not substantially performed.36 But the English court has itself abandoned it, and now holds,37 that where a builder has supplied work and labor for the erection or repair of a house under a lump sum contract, but has departed from the terms of the contract, he is entitled to recover for his services, unless (1) the work that he has done has been of no benefit to the owner; (2) the work he has done is entirely different from the work which he has contracted to do; or (3) he has abandoned the work and left it unfinished. It seems probable that

Danforth v. Freeman, 69 N. H. 466, 43 Atl. 621; Eckes v. Luce, (Okl. 1918), 173 Pac. 219; Woodford v. Kelley, 18 8. D. 615, 101 N. W. 1069; Gove v. Island City, etc., Co., 19 Or. 363, 24 Pac. 521; Smith v. Packard, 94 Va. 730, 27 S. E. 586.

34 Sumpter v. Hedges, [1898] 1 Q. B. 673; Maxwell & Delehomme v. Moore, 163 Ala. 490, 50 So. 882 (cf. Hartsell v. Turner, 196 Ala. 299, 71 So. 658); Fiflh v. Correli, 4 Cal. App. 521, 88 Pac. 489; McGonigle v. Klein, 6 Colo. App. 306,40 Pac. 465; Gill v. Vogler, 52 Md. 663; Oldewurtel v. Bevan, 117 Md. 645, 84 Atl. 66; Bowen v. Kimbell, 203 Mass. 364, 89 N. E. 542, 133 Am. St. Rep. 302; Elliott v. Caldwell, 43 Minn. 357, 45 N. W. 845, 9 L. R. A. 52; Johnson v. Fehsefeldt, 106 Minn. 202,118 N. W. 707,20 L. R. A. (N. S.) 1069; Wooten v. Read, 2 Smedes & M. (10 Miss.) 585; Robinson v. De Long (Miss.), 79 So. 95; Stroeh v. McClintock, 128 Mo. App. 368, 107 S. W. 416; Macpherson v. Maekay, 91 N. J. L. 473, 103 Atl. 36; Jennings v. Gamp, 13 Johns. 94, 7 Am. Dec. 367; Cunningham v. Jones, 20 N. Y. 486; Spence v. Ham, 163 N. Y. 220, 57 N. E. 412, 51 L. R. A. 238; Norton v. U. S. Wood Co., 89 App.

Div. 237, 85 N. Y. S. 886; Winstead v. Reid, Busb. L. (44 N. C.) 76, 57 Am. Dec. 571; Schmidt v. North Yakima, 12 Wash. 121, 40 Pac. 790; Malbon v. Birney, 11 Wis. 107; Manitowac Steam, etc., Works v. Manitowac Glue Worlgs, 120 Wis. 1, 97 N. W. 515.

35 Sinclair v. Bowles, 9 Barn. & Cr. 92; Munro v. Butt, 8 El. & Bl. 738.

36 Serber v. McLaughlin, 97 111. App. 104; Simpson Cons. Co. v. Stenberg, 124 111. App. 322; Morford v. Mastin, 6 T. B. Mon. 609, 17 Am. Dec. 168; Presbyterian Church v. Hoopes, etc., Co., 66 Md. 598, 8 Atl. 752; Meyer v. Frenkil, 113 Md. 45, 77 Atl. 769 (see also Oldewurtel v. Bevan, 117 Md. 645, 84 Atl. 66); Riddell v. Peck-Williamson, etc., Co., 27 Mont. 44,69 Pac. 241; Feeney v. Bardsiey, 66 N. J. L. 239, 49 Atl. 443; Pullman v. Corning, 9 N. Y. 93; Smith v. Brady, 17 N. Y. 173, 72 Am. Dec. 442; Steel Storage etc. Co. v. Stock, 225 N. Y. 173, 121 N. E. 786. It is interesting to observe, that New York which follows the strictest.theory here is the typically lenient State in allowing recovery on the contract.

37 H. Dakin & Co., Ltd., v. Lee, [1916] 1 K. B. 566.

the tendency of decisions will favor a builder who has not unjustifiably abandoned his contract or been guilty of conscious moral fault in its performance.38