The tests which are most commonly applied, and which have been criticised in reality allow the plaintiff to recover on the contract. For a court to assert that a plaintiff cannot recover on the contract but must sue on a quantum meruit, and then to apply in an action based on a quantum meruit the identical rule of damages applicable to an action on the contract is an odd anomaly. The reasoning of a leading Massachusetts decision70 is unanswerable where a plaintiff in default seeks to recover: "Because, being in default in the performance of the contract, or what is the same thing, because, being unable to prove that he did perform the contract, he has no rights under it, he has not the same right to recover for the value of the work done and materials furnished by him, that a person has work for which money is sought was done under a special contract, and that the plaintiff cannot recover under the special contract, but still seeks a recovery, there is no question of the value of his work and materials, proved in the usual way, and he does not make out a prima facie case by proving their value according to regular rules; to make out a case for recovery for such work and materials so furnished, he must prove how much the result of his work had benefited the defendant, he must prove what the fair market value of the thing produced by his misdirected work is, and, until he has done that, he has not made out even a prima facie case on which he is entitled to recover anything." 74
70 Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455, Loring, J., delivering the opinion. Cf. Vickery v. Ritchie, 202
Mass. 247, 88 N. £. 835, 26 L. R. A. (N. S.) 810.
who has done work and furnished materials as he has been requested to do. In the latter case it is immaterial whether the result of his work is of any value to the defendant or not.71 But one who has done work under a special contract, and resorts to a recovery under the principle of Hayward v. Leonard,72 recovers on the ground, and only on the ground, that the result of his work is of some benefit to the defendant; he comes into court admitting that he has not done what he agreed to do and that he cannot hold the defendant on his promise to pay him the contract price; more than that, he admits that the part, which he has failed to perform, is one, that bo far goes to the essence of the contract, that it is a condition precedent to a recovery by him on the contract; for, if the part which he agreed to perform, and did not perform, was of slight importance, it is not a condition precedent; he can recover the contract price without performing it, and the only advantage which the defendant can take of it is by way of recoupment, or by a cross-action, in which the burden is on him, the defendant, to prove the damage he has suffered from its non-performance. The only ground, on which a plaintiff, who resorts to a recovery under the principle of Hayward v. Leonard,73 is entitled to recover anything is, that, though, so far as his contract rights are concerned, he is entirely out of court, yet it is not fair that the defendant should go out of the transaction as a whole with a profit at his, the plaintiff's, expense, and therefore if the structure, which, for the purposes of a recovery on this ground, he necessarily admits does not come up to the contract requirements in essential particulars, is, nevertheless, a thing of some value, the defendant ought to make him compensation therefor." " Hie sole claim to be paid anything is that if he is not paid, the defendant will profit at his expense. Until he has proved that the defendant will in that case profit at his expense, he has not made out a prima facie case to be paid anything, and until he has proved how much that profit will be, his prima facie case is not complete. When the fact appears in evidence that the
71 Citing Austin v. Foster, 9 Pick. 341; Stowe v. Buttrick, 125 Mans. 449; Angus v. Scully, 176 Man. 357, 57 N. E.674.
72 7 Pick. 181, 10 Am. Deo. 26S. 73 Ibid.