If the plaintiff has completely performed the contract on his side, or has performed all of the terms which are conditions precedent to the defendant's obligation, and the defendant is ready and willing to perform, the plaintiff cannot refuse to accept the defendant's performance and recover the value of the benefit of his own performance. The defendant offers to the plaintiff precisely that which by the terms of the contract the plaintiff had a right to expect to receive, and the element of misreliance upon the contract, essential to the quasi contractual cause of action, is wanting:
1 Keener, "Quasi-Contracts," p. 239. 157
Riley v. Williams, 1878, 123 Mass. 506: Action on quantum meruit for work done under oral contract by which the plaintiff was to receive a lot of land from the defendant, and certain blacksmith's work from a firm of blacksmiths. The plaintiff fully performed and then refused to accept payment as stipulated in the contract. Ames, J. (p. 506): "If he [plaintiff] was to be paid partly in a lot of land belonging to the female defendant, and partly in blacksmith's work to be furnished by Cameron and Emerson, and the jury were satisfied that the defendants were ready and willing, at all times to convey the land at its fair market value, and Cameron and Emerson were always ready to furnish the blacksmith's work for him when called for at agreed or reasonable prices, it is not for the plaintiff to object that this special contract was not binding because it was not in writing. It was wholly immaterial that no action could be maintained on this special contract, because it was not reduced to writing, if the defendants were ready and willing at all times to carry it into full effect. The plaintiff cannot force the defendants to take their stand upon the statute." 1
In Wisconsin, however, it is held that since the contract is void the plaintiff may refuse to accept performance of it and insist upon restitution:
Koch v. Williams, 1892, 82 Wis. 186; 52 N. W. 257: Oral contract that the plaintiff should render certain services to the defendant, as compensation for which the defendant was to give the plaintiff certain real estate. The plaintiff performed but refused to accept the real estate and brought this action for the value of his services. Orton, J. (p. 191): "The plaintiffs, having rendered valuable services to the defendants under this void contract, are entitled to recover what such services were reasonably worth. This, at first blush, might appear to be a hardship on the defendants, who never agreed to pay for such services in money, and have offered to pay according to the oral contract by a conveyance of the lot. But it is inevitable from holding the contract void. The statute must be complied with as long as it is in force. It is no hardship to put such a contract in writing, and if parties suffer by not complying with the statute it is a penalty due to their own negligence, and they have no reason to complain."
1 Also: Day v. Wilson, 1882, 83 Ind. 463 ; 43 Am. Rep. 76, (purchase money paid); Galway v. Shields, 1877, 66 Mo. 313; 27 Am. Rep. 351, (purchase money paid for land); Green v. R. Co., 1877, 77 N. C. 95, (agreement to pay for wood by conveying land). But see Swift v. Swift, 1873, 46 Cal. 266.