This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
This rule, however, applies only where the party for whom the services are rendered is free to take their benefit or to reject it. If the services are of such nature that he has no choice but to accept them, he cannot be said to accept them voluntarily. Such acceptance, therefore, creates no liability.1 Thus if an attorney is retained by unauthorized agents of a church to prefer charges against a clergyman, and he prefers such charges and prosecutes the case and procures the suspension of such clergyman from the ministry by reason of such charges, his services are not so accepted by the church as to make it liable to him, by a resolution that by reason of such suspension, such clergyman should be required to leave the parsonage owned by the church.2 So one who voluntarily acts as janitor cannot recover though the occupant of the building is benefited thereby.3 So if work is done in putting a heating plant in a building under a special contract, and the contract is not performed and what has been done cannot be removed without injury to the building, no recovery can be had for such work.4 So if a building has been repaired,5 or painted,6 or if a stone base has been built under an iron fence, and the fence has been painted,7 or a bridge has been constructed,8 or a street laid down,9 and the contract under which the services have been rendered is either unenforceable,10 or has not been performed,11 the owner of such real property has no choice but to make use of the property upon which such work has been done, and therefore his making use of such property is not an acceptance of such services so as to create a liability to pay therefor. Some cases, however, do not seem to enforce this distinction. Thus where A placed a bath-tub, washbowl and other plumbing in B's house under a contract with whose terms he did not comply, and A makes use of the house with such plumbing in it, A is liable for such plumbing in quantum meruit.12 So where A constructs a system of waterworks for a city under a contract to furnish one with a capacity of two hundred and fifty thousand gallons a day and the system actually furnished has a capacity of only fifty thousand gallons a day, and the city makes use of the system actually constructed, it is liable therefor.13 But in these last cases it may be that under the particular facts, the party accepting the services may be held to have had the option to accept or not. So if A renders services in saving B's property without B's knowledge or assent. A cannot recover therefor; and the fact that B retains and uses the property thus saved is not such an acceptance of A's servicer as to make B liable therefor.14 Thus where A voluntarily repaired a broken levee on B's land without B's request, A cannot recover from B for such work.15 So in a leading case, A was about to burn over some stubble, and he notified B, whose wheat was stacked near the field to be burned over, to remove such wheat. B promised to do so, but neglected it. While the stubble was burning the wind changed, and B's wheat was threatened with destruction. A saved it, B knowing nothing of the matter until afterwards. It was held that A could not recover from B for his services.16
Parshley v. Church, 147 N. Y. 583; 30 L.R. A. 574; 42 N. E. 15; Riddell v. Ventilating Co., 27 Mont. 44; 69 Pac. 241 (decided under a statute which substantially re-enacts the Common Law rule as far as the particular case is concerned).
2Parshley v. Church, 147 N. Y. 583; 30 L. R. A. 574; 42 N. E. 15.
3 Cleveland County v. Seawell, 3 Okla. 281; 41 Pac. 592.
4 Riddell v. Ventilating Co., 27 Mont. 44; 69 Pac. 241.
5 Davis v. School District, 24 Me. 349.
6 Ginther v. Shultz, 40 0. S. 104.
7 Zottman v. San Francisco, 20 Cal. 96; 81 Am. Dec. 96.
8 Buchanan Bridge Co. v. Camp-hell. 60 O. S. 406; 54 N. E. 372.
9 Detroit v. Paving Co.. 36 Mich. 335.
10 Zottman v. San Francisco, 20 Cal. 96; 81 Am. Dec. 96; Buchanan Bridge Co. v. Campbell, 60 O. S. 406; 54 N. E. 372.
11 Ginther v. Shultz, 40 O. S. 104.
12 Gross v. Creyts. 130 Mich. 672; 90 N. W. 689.
13 Sherman v. Connor. 88 Tex. 35; 29 S. W. 1053.
14 Watson v. Ledoux. 8 La. Ann. 68.
15 New Orleans, etc.. Ry. v. Tur-can, 46 La. Ann. 155; 15 So. 187.
16 Bartholomew v. Jackson. 20 Johns. (N. Y.) 28; 11 Am. Dec. 237.