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.
Some authorities recognize a class of cases intermediate between those in which a legal excuse for non-performance exists and those in which a wilful breach exists; namely, a class of cases in which the party in default has attempted to perform in good faith but has been prevented by facts beyond his control but which do not in legal contemplation excuse nonperformance. In such cases recovery can be bad for a reasonable compensation for benefits received under the contract.1 The contract is broken but there is " not a "willful dereliction of duty."2 Thus recovery can be had for work done under a contract for the whole season and abandoned before the season was over because of threats of strikers, subject to a counterclaim for damages for such breach.3 So if one in good faith attempts to perform a building contract, but does not succeed in even substantial performance, he may, if the work done is accepted, recover the reasonable value of such work.4 In such cases the contract as far as it can be traced is decisive as to the reasonable value of the work done.5 The amount of recovery, therefore, in those cases where the original contract has not been entirely abandoned is the contract price less whatever damage has been caused by failure to comply with the contract, exactly.6 This is the same amount of recovery as is allowed in cases of substantial performance.7 The application of the principles discussed in this section, therefore, results in giving the same amount of recovery in case of material deviation from the contract as in cases of substantial performance; and makes the differences between them chiefly one of pleading - a difference which may easily vanish under the Code of Civil Procedure. It certainly seems just, however, that if recovery should be allowed it should never exceed the price fixed by the contract for the work actually done.8 In cases of substantial performance where, for any reason, recovery cannot be had upon the contract, recovery can be had for reasonable compensation.9 Thus if work is to be done to the satisfaction of the owner's agent, it is held in some jurisdictions that in case of substantial performance- the contractor can recover on quantum meruit if such agent withholds his approval.10 The reasonable value is to be obtained by deducting from the contract price the damage caused by deviation from the contract.11 So recovery can be had for such goods as are accepted under a contract to furnish goods to the satisfaction of the vendee's agent if the vendor has in good faith attempted to perform, though the amount accepted was much less than the amount contracted for.12
4 Fildew v. Besley. 42 Mich. 100; 36 Am. Rep. 433; 3 N. W. 278.
5 Parker v. Scott, 82 la. 266; 47 N. W. 1073.
6 Atlantic, etc., Ry. v. Construction Co., 98 Va. 503; 37 S. E. 13.
7 Peacock v. Gleesen, 117 la. 291;
90 N. W. 610. The fact that the driller offered to drill another well, which offer was refused, was immaterial.
8 Remy v. Olds. 88 Cal. 537; 21 L. R. A. 645; 26 Pac. 355.
1 Dermott v. Jones, 2 Wall. (U. S.) 1; s. c, 23 How. 220; Pinches v. Church, 55 Conn. 183; 10 Atl. 264; Morford v. Ambrose, 3 J. J. Mar. (Ky.) 688; Gleason v. Smith, 9 Cush. (Mass.) 484; 57 Am. Dec. 62; Newman v. McGregor, 5 Ohio 349; 24 Am. Dec. 293; Porter v. Woods, 3 Humph. (Tenn.) 56; 39 Am. Dec. 153; Barrett v. Coke Co., 51 W. Va. 416; 90 Am. St. Rep. 803; 41 S. E. 220; Walsh v. Fisher, 102 Wis. 172; 72 Am. St. Rep. 865; 43 L. R. A. 810; 78 N. W. 437. "Where he has been guilty of fraud or has wilfully abandoned the work, leaving it unfinished, he cannot recover in any form of action. Where he has in good faith fulfilled, but not in the manner or not within the time prescribed by the contract and the other party has sanctioned or accepted the work, he may recover upon the common counts in indebitatus assumpsit. Dermott v. Jones, 2 Wall. (U. S.) 1, 9.
2 Barrett v. Coke Co., 51 W. Va. 416; 90 Am. St. Rep. 803; 41 S. E. 220.
3 Walsh v. Fisher, 102 Wis. 172; 72 Am. St. Rep. 865; 43 L. R. A. 810; 78 N. W. 437.
4 Dermott v. Jones, 2 Wall. (U. S.) 1; s. c, 23 How. (U. S.) 220.
5 Dermott v. Jones, 2 Wall. (U, S.) 1; Hay ward v. Leonard, 7 Pick. (Mass.) 181; 19 Am. Dec. 268.
6 Escott v. White, 10 Bush. (Ky.) 169; Hayward v. Leonard, 7 Pick. (Mass.) 181; 19 Am. Dec. 268; Steeples v. Newton, 7 Or. 110; 33 Am. Rep. 705; Gallagher v. Sharp-less, 134 Pa, St. 134; 19 Atl. 491.
7 See Sec. 1385 et seq.