As the defendant has committed no legal wrong in refusing to perform an unenforceable contract, the plaintiff's measure of damages is based, not on the extent of his loss from the nonperformance of the contract but on the reasonable value of what he has done.92 Some cases do indeed allow recovery of the contract price,93 but the better view is otherwise.94 Whether the reasonable value allowed the plaintiff should be based on the plaintiff's detriment from the performance which he has rendered or the defendant's benefit therefrom is more doubtful. The former rule has been permitted,95 but the latter seems more accurate.96 Accordingly if the defendant has received no benefit, because the plaintiff's performance has enured to the benefit of a third person,97 or has enured to no one's benefit,98 as where the defendant refused to receive the product of the plaintiff's labor,99 no recovery can be allowed. The contract price is, however, an admission of value by the defendant and as such should be admitted in evidence, though not treated as conclusive.1 Decisions which refuse altogether to admit the agreed price in evidence 2 cannot be supported;
88 See infra, Sec. 1466, collecting oases where such restoration was decreed for breach of contract. There seems as good reason for recovery where the reason for the defendant's non-performance is the unenforceability of the contract as where the reason is his wrongful breach of an enforceable contract.
89 See supra, Sec. 404.
90 On this question see infra, Sec.Sec. 1464 et seq.
91 See infra, Sec.Sec. 1460,1463. In Smith v. Rogers, 42 Hun, 110, affd. 118 N. Y. 675, 23 N. E. 1146; Whitaker v. Burrows, 71 Hun, 478, 24 N. Y. 8. 1011, the vendee was allowed to sue for restitution though he might have enforced the contract specifically. In Reynolds v. Reynolds, 74 Vt. 463, 62 All. 1036, also, the plaintiff was allowed to recover the value of services, though he might have enforced the contract specifically. In Smith v. Hatch, 46 N. H. 146, the same alternative of recovering the value of what he had given, or specifically enforcing the defendant's promise was permitted. On the other hand, quasi-contractual relief was denied in Cilley v. Burkholder, 41 Mich. 749, 3 N. W. 221; Mahan v. Close, 63 Minn. 21, 66 N. W. 95; Johnson v. Puget Mill Co., 28 Wash. 515, 68 Pac 867.
92Fuller v. Reed, 38 Cal. 99; Patten v. Hicks, 43 Cal. 509; Hull v. Thomas, 82 Conn. 647, 74 AH. 925; Butler v. Shehan, 61 111. App. 661; Stout's Adm. v. Royston, 32 Ky. L. Rep. 1056, 107 S. W. 786; Dowling v. McKenney, 124 Mass. 478; Snyder v. Need, 129 Mich. 692, 89 N. W. 688; Cozad v. Elan, 115 Mo. App. 136, 91 S. W. 434; Riiff v. Riibe, 68 Neb. 543, 94 N. W. 517; Calvin v. Prentice, 45 N. Y. 162, 6 Am. Rep. 58; Jackson v. Steams, 58 Oreg. 57, 113 Pac 30, 37 L. R. A. (N. S.) 639, Ann. Cas. 1913 A. 284; Hertiog v. Hertzogs Admr., 34 Pa. 418; Werre v. Northwest Thresher Co., 27 S. Dak. 486, 131 N. W. 721; Mosson v. Swan, 6 Heiak. 460; Pierce v. Paine, 28 Vt. 34. See further, infra, Sec.Sec. 1478 et seq.
93Murphy v. DeHaan, 116 Is. 61, 89 N. W. 100; Sears v. Ohler, 144 Ky. 473, 139 S. W. 769; Puller v. Rice, 52 Mich. 436, 18 N. W. 204; Spinney v. Hill, 81 Minn. 316,84 N. W. 116; Lally v. Crookston Lumber Co., 85 Minn. 267, 88 N. W. 846. (In Spinney v. Hill the court admits that the law of Minnesota on this matter can hardly be defended.) Carter v. Brown, 3 S. Car. 298.
94Patten v. Hicks, 43 Cal. 509; William, etc., Works v. Atkinson, 68 111. 421, 18 Am. Rep. 560; Schanaen-bach v. Brough, 68 III. App. 526; Stout's Admr. v. Royston, 32 Ky. L. Rep. 1055, 107 S. W. 784; Emery v. Smith, 46 N. H. 151; Jackson v. Stearns, 68 Oreg. 57, 113 Pac 30, 37 L. R. A. (N. S.) 639, Ann. Cas. 1913 A. 284; Hertsog v. Hertiog's Adm., 34 Pa. 41S.
95 Fabian v. Wasatch Orchard Co., 41 Utah, 404, 126 Pac. 860, L. R. A. 1916 D. 892.
96 See infra, Sec. 1480.
97 Bristol v. Sutton, 115 Mich. 365, 73 N. W. 424; Pieroe v. Psine's Est., 28 Vt. 34; Kimmios v. Oldham, 27 W.Va.268. See also Dunphys. Ryan, 116 V. S. 491, 29 L. Ed. 703, 6 S. Ct. 486.
98 Butler v. Shehan, 61 111. App. 561; Banker v. Henderson, 68 N. J. L. 26, 32 Atl. 700. See alto Cocheco Acque-duct v. Boston, etc., R. Co., 59 N. H. 312.
99 Dowling v. McKenney, 124 Mass. 478.
1 See Woodward on Quasi-Contracts, page 166, L. R. A. 1916 D. 900.
2 E, g., Emery v. Smith, 46 N. H. 151.
and it is probable that in some at least of the jurisdictions which have allowed recovery of the contract price as such, the rule may be restricted so far as to involve a recognition of the principle that the plaintiff's recovery is based not on the contract but on an obligation imposed by law because of the benefit received. It is to be observed, however, that the price fixed in the promise is fixed beforehand, and where the amount of the plaintiff's performance is at that time uncertain or contingent it may turn out that the promised price will bear no relation to the value of the plaintiff's actual performance.3