It should not be requisite for the plaintiff to restore what he has received. The requirement of restoration by a plaintiff who seeks to rescind a transaction for the defendant's fraud or breach of promise 83 is only defensible because the plaintiff is seeking an alternative remedy. His primary remedy is to sue for deceit or for breach of contract; and the law in giving an alternative redress may well limit it to cases where no possible injustice will be done to the defendant. But where the original contract is unenforceable the quasi-contractual remedy is the only one available, and accordingly, the court should undertake to value any benefit which the plaintiff has received and deduct this benefit from the plaintiff's recovery.84 It has been held that the defendant cannot defeat the plaintiff's right of recovery by offering to restore in specie what the plaintiff gave him;85 but the decision has been criticized,86 and it seems rightly, on the ground that the fundamental duty of the defendant is restitution, and that the law gives money value generally, not because that is the plaintiff's primary right but merely as the equivalent of what be is entitled to. If the plaintiff has transferred specific personal property, on the faith of the defendant's oral promise within the statute, the plaintiff may bring trover on the defendant's refusal to perform.87 Similarly imply a promise to pay the balance." In Chapman v. Rich, 63 Me. 588, the plaintiff, who had furnished the defendant's child with board and clothing for her services during a portion of the agreed period, was allowed to recover. In Bethel p. Booth, 115 Ky. 145, 72 8. W. 803, the plaintiff had sold the defendant a business for a price less than its actual value, receiving as put consideration an oral promise to employ him for ten years. On the failure of the defendant to keep his promise, the plaintiff was allowed to recover the difference between the price actually paid for the business and its real value. 83 See infra, Sec.Sec. 1454 et seg.
84See further infra, 5 1460.
85In Hawley v. Moody, 24 Vt. 603, 606, Redfield, J., said at page 606, "If the party repudiating the future performance has himself received advances which he declines to pay for in the mode stipulated, it is regarded as equitable that he should refund in the usual mode for money had and for goods sold, and it is not in his power without the consent of the other party, to revest the title of the specific thing received."
86 Keener, Quasi -Contracts, 286.
87 Keath v. Patton, 2 Stew. 38; Luey v. Bundy, 9 N. H. 298, 32 Am. Dec 359; Dietrich v. Hoefelmeir, 128 Mich. 145,87 N. W. 111.
In some cases the plaintiff can enforce the contract, for as has already been Been in certain cases of oral agreements for the sale of land courts of equity enforce the bargain because of part performance;89 and where the purchaser can specifically enforce the contract though oral, there is the same but no more reason for allowing restitution than where the vendor breaks a promise not within the statute. In both cases, there is a remedy on the contract and the question must be answered whether restitution is, as a general rule, allowed as an alternative remedy of an injured party for breach of contract.90 Since such an alternative remedy is generally permitted, it should be allowed here, but subject to the same qualifications that exist where the original contract is enforceable. How far this makes it necessary that the defendant shall be put in statu quo will be considered elsewhere.91