Where money has been paid under a contract by a party who subsequently makes default in the performance due from him the question of his right to recover so much of the payment which he has made as exceeds the damage suffered by the other party, is often complicated by a circumstance not present where the part performance is property or services, - namely, the creation of a relation in essence the same as that of the parties to a purchase money mortgage. This is true where the part payment is made by one who agrees to buy land or goods and who is put in possession. Such cases have been previously treated.39 It is true that the special rules applicable to mortgages have not always been applied to such cases, but they should be, and to some extent they are. The question ceases to be governed by the principles which control the right of a party in default to recover for goods or services given in part performance. But one who pays money under a contract is not always in the position of a mortgagor, and in such a case it might seem easier to grant relief to the party in default than where he has given property or services; for the extent of the benefit which a defendant has derived from a partial payment of money is not as doubtful as where property or services have been contributed. Recovery has been allowed in some cases,40 but it would probably be more commonly denied,41 and no emwilfully abandoned his employment will naturally also allow recovery where he has been discharged for any cause not involving dishonesty or intentional injury of the employer; for to give other cause even wilfully for discharge can hardly be worse than wilful abandonment; but the converse is not equally true. An employee may give cause for discharge while honestly endeavoring to fulfil the contract. Consequently recovery has sometimes been allowed to a discharged employee in jurisdictions which would deny it to one who had been guilty of wilful abandonment.46 In other jurisdictions it is held broadly that a rightfully discharged employee cannot recover.47
38 How far acceptance of the builder's work involves a liability to pay for it, which would not otherwise have existed is considered, supra, Sec. 724.
40 Cherry Valley Iron Works v. Florence Iron Co., 64 Fed. 569, 12 C. C. A. 306 (contract to buy ore); Michigan Yacht Co. v. Busch, 143 Fed. 929, 75 C. C. A. 109 (contract to buy a yacht); Hickock v. Hoyt, 33 Conn. 553 (contract to buy wire); Sabas v. Gregory, 91 Conn. 26, 98 Atl. 293 (contract to buy an automobile).
41 This seems probable from the cases concerning land, Sec. 791, and conditional sales of chattels, Sec. 734. See also Bernsweig v. Hyman Levin Co., (Supr. Ct. App. Term), 172 N. Y. S. 437. In the land cases the essential relation of mortgagee and mortgagor does not always exist, and even where it does frequently the principles of mortgage phasis placed upon the reason why the plaintiff had made default, whether it involved wilfulness or merely misfortunes as unexpected as those of Antonio in the Merchant of Venice.