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 next case to consider is that of a party who has not fully performed and has not been discharged from the contract or excused from further performance. His right to ignore the contract and recover a reasonable compensation for work done is to be determined by answering one or both of the following questions: (1) Has a partial performance for which recovery is sought resulted in financial benefit to the party from whom it is sought? (2) Is such default wilful, or is it caused by something beyond the control of the party in default though not amounting to a discharge of his liability ? If the partial performance for which recovery is sought has not resulted in financial benefit to the party against whom recovery is sought, the party who has performed such services cannot recover in any event.1 The fact that performance was prevented by some external fact beyond his control,2 or that the partial perform ance was expensive to him,3 neither of them give him any right to recover more than the amount of the benefits conferred upon the party against whom the recovery is sought, and if no such benefits exist there is no right of recovery. Thus one who agrees to build a house for another, and who constructs such building in whole or in part, cannot recover anything if before the building is accepted by the owner it is destroyed by fire,4 by storm,5 or other casualty. In such cases no benefit from such part performance has accrued to the owner, and therefore no recovery can be had against him. If, however, one of several buildings to be constructed under an entire contract has been accepted by the owner, the contractor may recover for his work if such building is subsequently destroyed by fire before the rest of the contract is performed.6 So under a contract to drill a well to produce a certain supply of water, no recovery can be had for work and labor in drilling a hole, where work was stopped by the breaking of the drill rod before water was reached.7 So no recovery can be had where A agreed to plow and set out vines in the fall and keep them in good condition for three years in consideration of a conveyance of other realty to be made to him, but A did not do such work in the fall on account of heavy rains; but did it the following spring, and the vines failed and the ownep of the realty ordered him to vacate.8
12 Krause v. Crothersville, - Ind. - 5 70 N. E. 264. (In this case the contractor had spent more than he had received and no recovery was allowed.)
13 Thomas v. Hartshoine, 45 N. J. Eq. 215; 3 L. R. A. 381; 16 Atl. 916.
1 Boughton v. Smith, 142 N. Y. 674; 37 N. E. 470; Genni v. Hahn, 82 Wis. 90; 51 N. W. 1096.
2 Remy v. Olds. 88 Cal. 538; 21 L. R. A. 645; 26 Pac. 355.
3 Peacock v. Gleesen, 117 la. 291; 90 N. W. 610.