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.
The right of a party to a contract to recover a reasonable compensation for what he has done in performance of a contract remains for investigation. The theory underlying this right of recovery is not that the contract is to be enforced, but that compensation is to be made by a party who has received a benefit to a party who has rendered it, where such benefit was not intended by the parties to be gratuitous. This right of recovery is often referred to the theory of implied contract, and is put upon the ground that the party who has received the benefit impliedly agrees to make compensation therefor to the party who renders it. The fictitious character of this implied promise is nowhere clearer than in cases like this, because the party who renders the service, and the one who receives it, alike expect at the time that the express contract entered into between them will be performed; and therefore have no real understanding, express or implied, for paying a reasonable compensation without reference to the terms of such contract. If the fictitious character of the implied contract is clearly recognized, as when such rights are classed as constructive contracts, or quasi contractual rights, no harm can result from the use of such terms. Such a right, however, must not be confused with genuine implied contract. Rights of recovery, such as those under discussion, are grouped with implied contract for historical reasons. At Common Law the only form of action appropriate to such state of facts, was the action of assumpsit, and as no action could be maintained upon the special contract under such theory, it followed that the common counts in assumpsit were used wherever such action was brought. In order to bring an action in assumpsit, it was necessary to allege a promise. Accordingly, the theory of the implied or fictitious promise arose. From its inception, therefore, it was not a theory of substantive law, but merely a theory of pleading. The exercise of this right is, as we have seen,1 the result of the election between inconsistent remedies arising out of contract. Accordingly, an action of this sort operates as a waiver of any claim for damages that might have existed.2 Therefore the plaintiff cannot, under cover of this sort of action, enforce a claim for damages.3 Thus an action in general assumpsit for work and labor cannot be made the means for recovering damages for a breach of a contract.4 If the contract has been broken before the plaintiff has performed in whole or in part, he may recover damages but he cannot maintain an action of this sort. Thus an action for goods sold and delivered will not lie where goods have not been delivered, and where the title thereto has not passed to the defendant against whom the action is maintained.5 This action cannot be made a means for recovering damages for the breach of an express contract of sale. A placed a piano in B's house for trial, while B and his family were away, A getting the key to the house from a neighbor. A claimed that B's wife had authorized them to do this. In moving the piano in, B's house was somewhat damaged. B declined to take the piano, and demanded that A pay him the damage done before he surrendered it. It was held that B was not liable for the value of the piano.6 The fiction of the implied promise cannot be resorted to where no liability exists by reason of the facts themselves. If what has been done is in performance of the contract, one party thereto cannot increase the liability of the adversary party by this form of action. If goods have been sold under an express contract, which the vendee has performed, the vendor cannot ignore such contract and sue in assumpsit. Thus A bought goods of B under a contract by which as A claimed, B was bound to insure such goods during the transit. The goods were not insured, and were lost. Subsequently, A agreed with B's agent, X, to take certain goods in settlement of this claim. The goods were delivered, and A waived his claim. It was held that B could not recover from A for such goods in an action for goods sold and delivered.7 So if under the contract a real estate broker may be dismissed at any time before he finds a customer, he cannot on such dismissal maintain a quantum meruit for the time that he has spent in trying to find a customer.8
1 See Sec. 1569.
2 Harrison v. Hancock, 2 Neb. Rep. Unofficial 522; 89 N. W. 374.
3 North v. Mallory, 94 Md. 305; 51 Atl. 89.
4 North v. Mallory, 94 Md. 305; 51 Atl. 89.
5 McCormick Harvesting Machine Co. v. Cusack, 116 Mich. 647; 74 N. W. 1005.
6 Grinnell v. Anderson. 122 Mich. 533; 81 N. W. 329.