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.
Where partial performance has resulted in benefit to the adversary party, though not the benefit contracted for by him, there is a divergence of authorities, both as to the general theories determining the right of the parties and as to their application to particular states of fact. It may here be noted, as has already been said, that the doctrine of breach as preventing recovery, applies only to entire contracts.1 If the contract is severable, a breach of one of the severable provisions has no effect as a discharge of other severable provisions of the same contract. Some authorities hold that a wilful and unjustifiable abandonment of a contract prevents recovery for the benefits conferred by a partial performance.2 Recovery of reasonable compensation may be had, it is said, only if the contract has been performed fully, or if some legal excuse for non-performance exists.3 Thus abandonment of an entire contract for performing services,4 as a contract to construct a ditch,5 or the abandonment of a building contract,6 or a contract to construct waterworks,7 or a contract to furnish goods, as all the granite needed for a certain building,8 or one half the crop of corn in a certain field,9 have each been held to prevent recovery for the benefits conferred by partial performance if wilful and unjustifiable. Thus if a contractor wilfully abandons his contracts and leaves the building so unfinished and incomplete that the owner derives no benefit from the labor or materials,10 or if he uses material of a quality inferior to that specified in the contract,11 even if the building as constructed is a fair average job,12 he has not performed substantially and cannot recover. So no recovery can be had by a contractor who erects a building for a boat-house and violates a provision of the contract that it is to be in line with a certain dock.13 So no recovery can be had by a sewer contractor who fraudulently uses material inferior to that specified in the contract.14 So no recovery for a reasonable compensation can be had for painting a house under a special contract where the work done was not a substantial performance of the contract.15 So no recovery can be had for lithographing and printing catalogue covers where after the proof has been accepted, the printers without the consent or knowledge of the adversary party add the imprint of their own firm name, even if such imprint does not appreciably detract from the artistic effect of the covers.16 So willful abandonment of a contract for support in considera tion of a contract to devise certain realty, does not entitle the promisor, who had been in possession under such contract, to reimbursement for improvements.17 So one who has paid money in partial performance of a contract which he has then without legal excuse refused to perform fully cannot recover it,18
8 McKinney v. Springer, 3 Ind. 59; 54 Am. Dec. 470.
9 Powell v. Howard, 109 Mass. 192; Cullen v. Sears, 112 Mass. 299; White v. McLaren, 151 Mass. 553; 24 N. E. 911; McCue v. Whitwell, 156 Mass. 205; 30 N. E. 1134; Cardell v. Bridge, 9 All. (Mass.) 355; Walker v. Orange, 16 Gray (Mass.) 193; Hayward v. Leonard, 153
7 Pick. (Mass.) 181; 19 Am. Dec. 268.
10 Norwood v. Lathrop, 178 Mas?.. 208; 59 N. E. 650.
11 Norwood v. Lathrop, 178 Mass. 208; 59 N. E. 650.
12 Barrett v. Coke Co., 51 W. Va. 416; 90 Am. St. Rep. 803; 41 S. F 220.
1 See Sec. 1483 et seq.
2 Forman & Co. v. The Liddesdale (1900), App. Cas. 190; Hansbrough v. Peck, 5 Wall. (U. S.) 497; Ho-gan v. Titlow, 14 Cal. 255; Coburn v. Hartford, 38 Conn. 290; Thrift v. Payne, 71 111. 408; Serber v. McLaughlin, 97 111. App. 104; Escott v. White, 10 Bush (Ky.) 169; Thayer v. Wadsworth, 19 Pick. (Mass.) 349; Scheible v. Klein, 89 Mich. 376; 50 N. W. 857; Elliott v. Caldwell, 43 Minn. 357; 9 L. P.. A. 52; 45 N. W. 845; Kohn v. Frandel, 29 Minn. 470; 13 N. W. 904; Nelich-ka v. Esterly, 29 Minn. 146; 12 N. W. 457; Weber v. Clark, 24 Minn. 354; Butt v. Williams (Miss.), 15 So. 130; Posey v. Garth, 7 Mo. 94; 37 Am. Dec. 183; Smith v. Brady, 17 N. Y. 173; 72 Am. Dec. 442; Bonesteel v. New York, 22 N. Y. 162; Van Clief v. Van Vechten, 130 N. Y. 571; 20 N. E. 1017; Ginther v. Shultz, 40 O. S. 104; Harris v. Sharpless, 202 Pa. St. 243; 58 L. R. A. 214; 51 Atl. 965; Hartman v. Meighan, 171 Pa. St. 46; 33 Atl. 123.
3 Phelps v. Hubbard, 59 111. 79; Marshall v. Jones, 11 Me. 54; 25 Am. Dec. 260; Denmead v. Coburn, 15 Md. 29; Fairfax, etc., Co. v.
Chambers, 75 Md. 604; 23 Atl. 1024; Olmstead v. Beale, 19 Pick. (Mass.) 528.
4 Wright v. Turner, 1 Stew. (Ala.) 29; 18 Am. Dec. 35; Badgley v. Heald, 9 111. 64; Eldridge v. Rowe, 7 111. 91; 43 Am. Dec. 41; Miller v. Goddard, 34 Me. 102; 56 Am. Dec. 638; Homer v. Shaw, 177 Mass. 1; 58 N. E. 160; Davis v. Maxwell, 12 Met. (Mass.) 286; Timberlake v. Thayer, 71 Miss. 279; 24 L. R. A. 231; 14 So. 446; Lan-try v. Parks, 8 Cow. (N. Y.) 63; Larkin v. Buck, 11 O. S. 561; Steamboat Co. v. Wilkins, 8 Vt. 54.
5 Steeples v. Newton, 7 Or. 110; 33 Am. Pvep. 705.
6 Sumpter v. Hedges (1898), 1 Q. B. 673; Feeney v. Bardsley, 66 N. J. L. 239; 49 Atl. 443; Bozarth v. Dudley, 44 N. J. L. 304; 43 Am. Rep. 373; Allen v. Curies, 6 O. S. 505; Malbon v. Birney, 11 Wis 107.
7 Vicksburg Water-Supply Co. Gorman, 70 Miss. 360; 11 So. 680.
8 Cohn v. Plumer, 88 Wis. 622; 60 N. W. 1000.
9 Witherow v. Witherow, 16 OY»io 238. (Delivery of part only.)
10 Marchant v. Hayes, 117 Cal. 669; 49 Pac. 840.
11 Golden Gate Lumber Co. v. Sahrbacher, 105 Cal. 114; 38 Pac. 635.
12 Golden Gate Lumber Co. v. Sahrbacher, 105 Cal. 114; 38 Pac. 635.
13 Houlahan v. Clark, 110 Wis. 43; 85 N. W. 676.
14 Schmidt v. North Yakima, 12 Wash. 121; 40 Pac. 790.
15 Ginther v. Shultz, 40 O. S. 104.
16 Harris v. Sharpies, 202 Pa. St. 243; 58 L. R. A. 214; 51 Atl. 965.
17 Andrews v. Andrews, 122 N. C. 352; 29 S. E. 351.
18 Hansbrough v. Peck, 5 Wall. (U. S.) 497; Downey v. Riggs, 102 la. 88; 70 N. W. 1091; Hapgood v. Shaw, 105 Mass. 276; Leonard v. Morgan, 6 Gray (Mass.) 412; Pierce v. Jarnagin, 57 Miss. 107; Lexington, etc., Co. v. Neuens, 42 Neb. 649; 60 N. W. 893; Dula v. Cowles, 7 Jones L. (N. C.) 290; 75 Am. Dec. 463; Neis v. O'Brien,
Thus if A under a contract to buy chattels pays part of the purchase price in advance and then wrongfully refuses to receive such chattels under the erroneous belief that they did not correspond to the provisions of the contract, he cannot recover the payment thus made,19 even if the vendor then resells the chattels for more than the amount still due.20 So if A under a contract to buy realty pays part of the purchase money, and then is unable or unwilling to complete his contract, he cannot recover the amount thus paid in,21 even though there is no clause of forfeiture in the contract.22 The vendee in default cannot recover for improvements erected by him upon such realty.23