Since the plaintiff has wrongfully broken his contract, the defendant may by recoupment or counterclaim get appropriate damages deducted from the plaintiff's recovery. If the measure of the plaintiff's damages is based, as it has been argued it should be, on the benefit which the defendant receives from the plaintiff's performance, the situation is that the defendant pays for something different from what the contract called for, such a sum as that something is worth, and the contract stands as totally unperformed. The defendant then has a cross right for the same damages he would have had the plaintiff repudiated his contract without any performance - the difference between the contract price of the building, and the cost in the market of making such a building.

Sec. I486. Effect of the contract price on quasi-contractual recovery.

Where the plaintiff's failure to fulfil completely his obligations under the contract is due to the defendant's default there is no reason for imposing any limitation on the amount which he may recover on a quantum meruit or quantum valebat for what he has done, other than that set by the principles of fair value previously stated. Though the amount or rate of compensation stated in the contract is evidence of this,78 it does not set a conclusive limit on the plaintiff's right.79 There are indeed con-

78 Fitzgerald v. Allen, 128 Mass. 232; Phillips v. Hemdon, 78 Tex. 378, 14 S. W. 857, 22 Am. St. Rep. 50.

79Lodder v. Slowey, 1904 A. C. 442 (affirming 20 New Zealand L. R. 321); Valente v. Weinberg, 80 Conn. 134, 67 AtL 369, 13 L. R. A. (N. 8.) 448; Bodemer v. Gonder, 9 Gill, 288; Fit*-gerald v. Allen, 128 Mass. 232; Connolly v. Sullivan, 173 Mass. 1, 53 N. E. 143; Kearney v. Doyle, 22 Mich. 294; Hemminger v. Western Assurance Co., 95 Mich. 355, 54 N. W. 949 (cf. Eakright v. Torrent, 105 Mich. 294,

63 N. W. 293); Johnston v. Star Bucket Co., 274 Mo. 414, 202 S. W. 1143; Smith v. Keith & Perry Coal Co., 36 Mo. App. 567; Joern v. Bang, (Mo. App. 1918), 200 S. W. 737; Thompson v. Gaffey, 52 Neb. 317, 72 N. W. 314 Clark v. Manchester, 51 N. H. 594; Clark v. New York, 4 N. Y. 338,53 Am. Dec. 379; Wellston Coal Co. v. Franklin Paper Co., 57 Ohio St. 182, 48 N. . 888; Philadelphia v. Tripple, 230 Pa. 480, 79 AtL 703; Derby v. Johnson, 21 Vt. 17; Chamberlin v. Scott, 33 Vt. 80. See also United States v. Behan, 110 trary decisions; 80 but they Beem opposed to sound principle. Where, however, the defendant is not in default under the contract the plaintiff's right must be limited. Non constat that the defendant would have agreed to pay the fair value for what the plaintiff contracted to perform. Perhaps the unreasonably low price demanded by the plaintiff originally was what led the defendant to make the contract. While these considerations should have no weight where it is the defendant's fault that the contract is not fulfilled they must be regarded where it is not his fault. The plaintiff should then be limited to such a fraction of the contract price as what he performed bears to the whole. He is not necessarily entitled to as much as this if the defendant has not received so much benefit, but he should never recover more.81 In a Massachusetts case the parties had in fact made no agreement, but owing to the fraud of an architect each in good faith supposed that a certain building which the plaintiff was to erect was to be completed under the terms of a writing in his hands. Owing to the architect's fraud the price named.in the two writings (which were otherwise alike) differed. The court held that there was no contract, but allowed the plaintiff to recover an amount based on the detriment to him which largely exceeded both the benefit to the defendant and the price for which he supposed the work was being done."

U. S. 338, 346, 28 L. Ed. 168, 4 Sup. Ct. 81. In Knotta v. Clark Const. Co., 249 Fed. 181, 161 C. C. A. 217, the court while declining to pass upon the question whether the plaintiff could ever recover more than the contract price, held that the fact that the contract could only have been completed at a loss to the plaintiff did not preclude or limit recovery of the fair value of what had been done. Wiegel v. Boone, 64 Ark. 228, 41 S. W. 763; Dobbins v. Higgins, 78 111. 440; Rice v. Partelto, 88 111. App. 62; Hoyle v. Stetlwagen, 28 I ml. App. 681, 63 N. E. 780; Western v. Sharp, 14 B. Mon. 177; Kehoe c. Rutherford, 56 N. J. L. 23, 27 Atl. 012; Doolittle v. McCullough, 12 Ohio St. 360 (much .qualified by Wellston Coal Co. v.

Franklin Paper Co., 57 Ohio St. 182, 48 N. E. 888); Noyes v. Pugin, 2 Wash. 653, 27 Pac. 548.

81 See McKinney v. Springer, 3 Ind. 59, 54 Am. Dec 470; Gillis s. Cobe, 177 Mass. 584, 59 N. E. 455; Reifsehneider v. Beck, 148 Mo. App. 725, 120 S. W. 282; Manning v. School Dist., 124 Wis. 84, 102 N. W. 356, and see mpro, Sec. 1480, n. 61.

82 Vickery v. Ritchie, 202 Mass. 247, 88 N. E. 835, 26 L. R. A. (N. S.) 810. A case involving somewhat similar mistake is Turner v. Webster, 24 Kana. 38, 36 Am. Rep. 251, and the plaintiff was allowed to recover the fair value of his work, bat it did not appear that the benefit to the defendent was less than the detriment to the plain-tiff.

It is hard to see how one who has done work or furnished materials without any contractual right to compensation can be entitled to recover from a defendant who has been guilty of no fault a sum in excess both of what he was willing to pay and of any benefit which he has received.