If, however, the seller of goods agrees to take the buyer's bill or note, payable at a future day, he cannot bring indebitatus assumpsit upon the buyer's failure to give the bill or note, but must wait until the period of credit expires. Mussen v. Price, 1803,4 East 147 ; Dutton v. Solomonson, 1803, 3 Bos. & Pul. 582; Manton v. Gammon, 1880, 7 111. App. 201; Hall v. Hunter, 1854, 4 G. Greene (la.) 539; Carson v. Allen, 1838, 6 Dana (36 Ky.) 395; Hanna v. Mills, 1839, 21 Wend. (N. Y.) 90; 34 Am. Dec. 216; Yale v. Coddington, 1839, 21 Wend. (N. Y.) 175. And see Maas v. Montgomery Iron Wks., 1889, 88 Ala. 323; 6 So. 701. But see, contra, Stocksdale v. Schuyler, 1890, 55 Hun 610; 29 N. Y. St. Rep. 380; 8 N. Y. Supp. 813, aff. 130 N. Y. 674; 29 N. E. 1034 ; Tyson v. Doe, 1843, 15 Vt. 571; Foster v. Adams, 1888, 60 Vt. 392 ; 15 Atl. 169; 6 Am. St. Rep. 120. If the buyer agrees to give the bill or note of a third person and fails so to do, indebitatus assumpsit may be brought at once. See Hall v. Hunter, 1854, 4 G. Greene (la.) 539.
3 Dermott v. Jones, 1864, 2 Wall. (U. S.) 1; Pusey & Jones Co. v. Dodge, 1900, 3 Penn. (Del.) 63 ; 49 Atl. 248; Campbell v. Dist. of Col.,
There seems to be no valid reason for this limitation. Possibly the fact that the assessment of compensatory damages is likely to be less difficult where the breach occurs after the defendant has received full performance accounts for it in some degree. But certainly it is quite as easy to assess compensatory damages where the plaintiff's full performance consists of the payment of money as where it consists of the delivery of goods or the rendition of services; yet in the former case the remedy of restitution is allowed. In criticism of the limitation, Professor Keener says:1
"While it is true that the plaintiff should, if he so desire, be allowed to sue in debt or in indebitatus assumpsit, simply to recover the contract price, treating the performance on his side as creating a debt, still it would seem that logically he should be allowed to claim restitution in value in such cases as much as in the case where he seeks and is allowed to recover not the money, which he in fact paid the defendant, but an equivalent sum of money. When the plaintiff paid the money he did not expect its return, but its equivalent; and the promised performance by the defendant, which subsequent events have shown to be less in value than the parties supposed, was treated by the parties as the equivalent of the plaintiff's money; and yet the plaintiff is allowed, regardless of this fact, to recover from the defendant the full amount paid. But if a defendant in default is not allowed to return a sum less than the amount received by him where he has received money from the plaintiff, why should he be allowed to return less than the actual value of the services or property received by him under a contract which he has not performed?" 2
Another illogical limitation that has been widely accepted is that if, by the terms of the contract, the injured party, in return for his goods or services, is to receive, not money, but goods or services, he may not elect to sue for restitution but must rely upon his action for damages.1 This indicates a misconception of the theory of the action for restitution. Fortunately there is authority to the contrary,2 and moreover, it seems that the limitation is not applicable to cases in which goods or services are contracted for at a certain money price which the buyer has the option to pay in goods or services.3
1876, 2 MacAr. (D. C.) 533; Barnett v. Sweringen, 1898, 77 Mo. App. 64. Keener, "Quasi-Contracts," p. 301; Wald's Pollock, "Contracts," (Williston's ed.) p. 337. And see other cases in preceding note.
1 "Quasi-Contracts," pp. 301, 302.
2 And see Wald's Pollock, "Contracts" (Williston's ed.), pp. 336, 337.
In the case of land conveyed, there seems to be no alternative remedy at law, but in some cases restitution in specie may be enforced in equity.4
1 Harrison v. Luke, 1845, 14 Mees. & W. 139; (cf. Keys v. Har-wood, 2 C. B. 905); Anderson v. Rice, 1852, 20 Ala. 239; Bernard v. Dickens, 1860, 22 Ark. 351; Cockran v. Tatum, 1826, 3 T. B. Mon. (19 Ky.) 404; Slayton v. McDonald, 1881, 73 Me. 50; Pierson v. Spaulding, 1886, 61 Mich. 90; 27 N. W. 865; Mitchell v. Gile, 1841, 12 N. H. 390; Brooks v. Scott, 1811, 2 Munf. (Va.) 344; Bradley v. Levy, 1856, 5 Wis. 400.
2 Stone v. Nichols, 1880, 43 Mich. 16; 4 N. W. 545; Brown v. St. Paul, etc., R. Co., 1886, 36 Minn. 236; 31 N. W. 941; Clark v. Fair-child, 1840, 22 Wend. (N. Y.) 576.
3 Sullivan v. Boley, 1888, 24 Fla. 501; 5 So. 244; Newman v. McGregor, 1832, 5 Ohio 349; 24 Am. Dec. 293; Wainwright v. Straw, 1843, 15 Vt. 215; 40 Am. Dec. 675; Perry v. Smith, 1850, 22 Vt. 301; Butcher v. Carlile, 1855, 12 Gratt. (Va.) 520. But see Pierson v. Spaulding, 1886, 61 Mich. 90; 27 N. W. 865; Bradley v. Levy, 1856, 5 Wis. 400.
4 Savannah, etc., R. Co. v. Atkinson, 1894, 94 Ga. 780; 21 S. E. 1010, (bill for cancellation of conveyance on abandonment of work by railway) ; McClelland v. McClelland, 1898, 176 111. 83,; 51 N. E. 559, (bill to set aside a deed on breach of agreement to support); Clark v. McCleery, 1901, 115 la. 3; 87 N. W. 696, (grantor intervened in foreclosure proceedings begun by grantee on breach of latter's agreement to exchange land); Shepardson v. Stevens, 1889, 77 Mich. 256; 43 N. W. 918, (bill to set aside a deed on breach of agreement to support); Pironi v. Corrigan, 1890, 47 N. J. Eq. 135; 20 Atl. 218, (bill to set aside a deed on breach of agreement to procure a separation between grantor and her husband); Michel v. Halheimer, 1890, 56 Hun 416; 10 N. Y. Supp. 489, (counterclaim for a reconveyance because of grantee's breach of agreement to improve property to joint profit); Wilfong v. Johnson, 1895, 41 W. Wa. 283; 23 S. E. 730, (bill to set aside deed on grantee's failure to bind himself and the land by a contract in writing to support grantor's and grantee's father, as he had orally agreed to do); Glocke v. Glocke, 1902, 113 Wis. 303; 89 N. W. 118; 57 L. R. A. 458, (action to enforce rescission of contract for breach of condition subsequent; agreement was for support, secured by mortgage, equity