Where the plaintiff is in default under a contract, and is allowed a quasi-contractual recovery in order to prevent an unjust enrichment of the defendant and the infliction of a penalty upon the plaintiff out of proportion to the wrong he has committed, it seems clear that the law can impose no greater liability upon the defendant than to give up any benefit which he may have derived from the plaintiff's performance. To go further than this would be to penalize a defendant who has been guilty of no legal or moral wrong,61 and even though the immediate cause of the non-performance of a contract is the defendant's refusal to perform, the same result seems necessary, if the defendant has been given by the plaintiff's fault a defense for refusal.62 The use of common counts in quantum meruit and quantum valebat for the enforcement of both obligations has tended to confuse with the quasi-contractual obligations here under discussion, certain obligations based on actual contracts, namely, those where there is a real promise whether express or implied in fact to pay the reasonable value of goods or services. In such cases and on a fair construction of the parties' contract it is reasonable to suppose that if there is a market value for what the plaintiff is requested to furnish, that value is the measure of the promised price. If there is no market price, that it is at least the cost or worth from the plaintiff's standpoint, not limited by the benefit which must accrue to the defendant, that the parties intended, and that must be taken as the test.63 Again, even though the defendant's liability is imposed by law irrespective of the agreement of the parties, and may therefore be called quasi-contractual, where the defendant is a wrongdoer the plaintiff may well be preferred, and if a complete restoration of the status quo or its equivalent is impossible the plaintiff should at least be replaced in as good a position as he originally was in, although the defendant is thereby compelled to pay more than the amount which the plaintiff's performance has benefited him.64 That is, the law should impose on the

57 5 1525.

58 Sec.1623.

59 Sec.1542.

60 Sec.Sec.1787-1791.

61 Eastern v. Quackenbuah, 86 Or. 374,168 Pac. 631. This is so provided in the Uniform Sales Act. See supra, 11474, ad fin.

62 See for analogous questions, as to infants, supra, Sec. 240, as to lunatics, Sec. 255, as to intoxicated persons, Sec.262, as to married women, Sec. 270, as to ultra vires contracts, Sec. 271, as to contracts unenforceable because of the Statute of Frauds, Sec.536, as to impossibility, Sec.Sec. 1972 et seq.

63 Cases of. this sort are White v. Dougherty, 1 Boyce (Del.), 356, 76 Atl. 609; Bluemner v. Garvin, 120 N. Y. App. D. 29, 104 N. Y. S. 1009; Edington v. Pickle, 1 Sneed, 122; Wojahn v. National Union Bank, 144 Wis. 646, 129 N. W. 1068. See also Bradley v. Rea, 14 Allen, 20. The plaintiff's recovery is not limited to the cost to himself. Hyde v. Moxie Nerve Food Co., 160 Mass. 559, 560, 36 N. E. 585; Borden v. Mercer, 163 Mass. 7, 39 N. E. 413; Bradley Heating Co. v. Thomas M. Sayman Ac. Co., (Mo. 1918), 201 S. W. 864, 868.

64 Sedgwick on Damages (9th ed.), Sec. 655 a. The application of this principle to a contract of service was considered in Rogers v. Becker-Brainard Machine Co., 211 Mass. 559, 98 N. E. 592. A contractor had agreed to blast from a ledge, at a price per cubic yard, such an amount of stone as the owner might desire, and the owner had agreed to have one-half of the rock removed before stopping the work. The contractor before removing the rock, acting as a reasonable man and under the supervision of the owner's agent, continued at work and made preparation for the removal of the remainder of the rock until he was notified by the owner to cease work. In an action on a common count, it was held that the contractor might recover not only the contract price for the rock removed, but for the value of work done and materials used in preparation for further blasting. The court said: "The measure of the plaintiff's damages is the fair value of the work which is additional to that covered by the contract. This is not a case where one has substantially but not fully performed an express contract and seeks to recover upon a quantum meruit; and cases like Hayward v. Leonard, 7 Pick. 181, 19 Am. Dec. 268, cited by the defendant, are not applicable. It may be that the work in question is of little immediate value to the defendant, but this is due to its failure to give timely notice of its decision to remove only a portion of the stone, and cannot lessen the amount to which the plaintiff is entitled. Stowe v. Buttrick, 125 Mass. 449; Fitzgerald v. Allen, 128 Mass. 232; Vickery v. Ritchie, 202 Mass. 247, 88 N. E. 835, 26 L. R. A. (N. S.) 810."

In Mooney v. York Iron Co., 82 Mich. 263, 46 N. W. 376, an action on a quantum meruit where the defendant had prevented the plaintiffs from completely performing, the trial judge charged the jury that the plaintiffs might recover "what his services were worth. That does not mean what they were worth to the employer. It is the fair value." On exception to this charge, on the ground that the true measure of damages was the value of the product of the plaintiffs' labor, the charge was upheld, but the court added (p. 264), "If the plaintiffs had abaadefendant a duty to restore the plaintiff's former status, not merely to surrender any enrichment or benefit that he may unjustly hold or have received; though if the market value or bene* fit to the defendant of what has been furnished exceeds the cost or value to the plaintiff, there is no reason why recovery of this excess should not be allowed.65 These different possible situations, as has been said, have often been confused with one another, because the form of action in each of them was identical at common law - general assumpsit on a quantum meruit or quantum valebat count; and this tended to induce courts and others to inquire what is the rule of damages under such counts -a question not susceptible of a single answer. Frequently also it is not perceived that there is an important distinction between cost or detriment to the plaintiff and benefit to the defendant, because often (perhaps generally) the value of the performance which the plaintiff has rendered is identical from whichever standpoint it is regarded. Again, the assumption that the benefit to the defendant if the contract were fully completed is necessarily the contract price, is frequently made. Probably for these reasons a majority of decisions, speaking of the damages which a plaintiff in default in the performance of his contract who is nevertheless allowed to recover for his part performance should recover, say that he is entitled to the contract price less such damage as the defendant has suffered from the breach,66 or less the cost of comdaned the work, without being directed to do so by the defendant, and the defendant had appropriated the work to its own use, the rule contended for would have been correct."

In Cosad v. Elam, 115 Mo. App. 136, 91 S. W. 434, and Fabian v. Wasatch Orchard Co., 41 Utah, 404, 125 Pao. 860, L. R. A. 1916 D. 892, the court applied the same principle against a defendant who had repudiated a contract voidable under the Statute of frauds. So where a vendor wrongfully refuses a conveyance to a vendee in possession, the latter may recover what he has paid the vendor and also what he has expended in improvements on the land (not merely the increased value of the land by virtue of the improvements). Latimer v. Capay Valley Land Co., 137 Cal. 286, 70 Pac. 82; McClure v. Lewis, 72 Mo. 314; Gibert v. Peteler, 38 N. Y. 165, 97 Am. Dec. 785; Mclndoe v. Mormon, 26 Wis. 588, 592, 7 Am. Rep. 96.

65 Bradley Heating Co. v. Thomas M. Sayman etc. Co., (Mo. 1918), 201 S, W. 864,867.

66 Small v. Lee, 4 Ga. App. 395, 61 S. E. 831; Richards v. Shaw, 67 11I. 222 (sale of goods); Byerlee v, Mendel, 39 la. 382, 386 (contract of employment); Viles v. Kennebec Lumber Co., (Me. 1919), 106 Atl. 431 (contract for pletion; 67 or where the work is inferior, but not unfinished so as to be readily capable of completion, that "there should be deducted from the contract price the amount by which the value of the [performance rendered by the plaintiff falls] short of what that value would have been if the contract had been exactly performed;" 68 or "the value of the labor and materials less any deductions necessary to complete the work but not to exceed the contract price." 69