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.
In determining whether the right to ignore the contract and to sue for a reasonable compensation for services rendered under the contract exists, the first question to determine is whether the party who seeks to maintain such an action has performed the contract on his part. If he has performed the contract fully, and the adversary party has not performed it, the party performing has the right of election. " While a special contract remains executory the plaintiff must sue upon it. When it has been fully executed according to its terms and nothing remains to be done but the payment of the price, he may sue on the contract or in indebitatus assumpsit and rely upon the common counts. In either case the contract will determine the rights of the parties."1 On the one hand he may maintain an action for breach of the contract and recover damages; on the other hand, he may ignore the contract and maintain an action for the reasonable value of the property furnished or work done by him under the contract. Thus wherever one party to a contract has performed fully, and the only thing remaining to be done is the payment of money by the adversary party, the party entitled to receive payment may maintain an action under the common counts in assumpsit" General assumpsit in counts for money will therefore lie on a note.3 Thus if a vendor of chattels has fully performed his contract, and nothing remains to be done by the vendee except the payment of the purchase price, the vendor may ignore the contract and recover in quantum meruit.4 So assumpsit will lie to recover the unpaid purchase price of an interest in a partnership.5 One who has furnished support under a special contract providing for his compensation by devise of specific property, may in case of breach ignore such contract and recover for work done by him under the contract in quantum meruit6 So one who has fully performed a contract for work and labor,7 as a building contract,8 or a contract to repair a building,9 can recover thereon in quantum meruit. So assumpsit will lie against a member of an association to recover unpaid dues. Action need not be brought upon the written contract.10 General assumpsit will lie for contribution by one co-indorser against another, even if an express contract for contribution exists.11 The special contract under which the work was done or property sold may be put in evidence to show the amount due.12 Where a party is suing to recover a payment made upon an executory consideration which has failed, his right to recover is not defeated by the fact that the payment was made voluntarily.13 In case the adversary party has waived performance of the unperformed terms, the party who hag performed all the remaining terms may recover therefor on the common counts.14 Since the right to sue on the common counts is an election of such remedy and a waiver of the right to sue on the contract, it follows that one who pleads and proves a special contract is precluded by such election from recovering on the common counts.15 In an action on the common counts, the plaintiff's right of recovery was limited by the amount fixed by the contract.16
7 Wood v. Finson, 89 Me. 459; 36 Atl. 911.
8 Cadigan v. Crabtree, 179 Mass. 474; 88 Am. St. Rep. 397; 55
L. R. A. 77; 61 N. E. 37. 1 Dermott v. Jones, 2 Wall. (U. S.) 1, 9.
2 Ezell v. King, 93 Ala. 470; 9 So. 534; Maas v. Iron Works, 88 Ala. 323; 6 So. 701; Union Elevated Ry. v. Nixon, 199 111. 235; 65 N. E. 314; Reitz v. Seibold, 92 111. App. 147; Miner v. O'Harrow, 60 Mich. 91; 26 N. W. 843; McDermott v. Ald Society, 24 R. I. 527; 54 Atl. 58.
3 Brewing Co. v. Hermann, 187 111. 40; 58 N. E. 397; Wilson v. St. John's Hospital, 92 111. App. 413; Tebbetts v. Pickering, 5 Cush. (Mass.) 83; 51 Am. Dec. 48; Cruger v. Armstrong, 3 Johns. Cas. (N. Y.) 5, 528.
4 Moline, etc., Co. v. Iron Co., 83 Fed. 66; 27 C. C. A. 442; Moore v.
Mfg. Co., 113 Mo. 98; 20 S. W. 975. 5 Draucker v. Arick, 161 Pa. St. 357; 29 Atl. 32.
6 Hudson v. Hudson, 87 Ga. 678; 27 Am. St. Rep. 270; 13 S E. 583; s. c, 90 Ga. 581; 16 S. E. 349.
7 Stafford v. Sibley, 106 Ala. 189; 17 So. 324; Fairfax, etc., Co. v. Chambers, 75 Md. 604; 23 Atl. 1024.
8 Board of Commissioners Fulton County v. Gibson. 158 Ind. 471; 63 N. E. 982.
9Whatley v. Reese, 128 Ala. 500; 29 So. 606.
10 Elm City Club v. Howes, 92 Me. 211; 42 Atl. 392.
11 Weeks v. Parsons, 176 Mass. 570; 58 N. E. 157.