In order that the judgment may not enrich the plaintiff at the defendant's expense, the value of any benefit received by the plaintiff from the defendant must be deducted from the value of that conferred by the plaintiff upon the defendant:
Richards v. Allen, 1840, 17 Me. 296: Oral contract to purchase land. Weston, C.J. (p. 300): "But the plaintiff's claim must be limited to what is just and reasonable under all the circumstances. He had made some payments; but he had enjoyed the farm for eighteen or twenty years. The jury should have been permitted to take this into consideration, even without an account in offset, as it was necessarily connected with the plaintiff's claim, and was of a character to affect and qual-ify it."
Ham v. Goodrich, 1858, 37 N. H. 185: Services rendered under an oral contract that the defendant should convey a farm to the plaintiff. Eastman, J. (p. 190): "The recovery of the plaintiff being founded upon the general counts, and upon them alone, the instructions of the court that what he received from the farm as he went along might be applied in payment for his services, were correct. What did he reasonably deserve to have, under all the circumstances, was the question."
1 McElroy v. Ludlum, 1880, 32 N. J. Eq. 828. But see La Du-King Mfg. Co. v. La Du, 1887, 36 Minn. 473, 31 N. W. 938.
Day v. N. Y., etc., R. Co., 1873, 51 N. Y. 583: Oral contract by which in consideration of the conveyance of land by the plaintiff, the defendant was to give to the plaintiff the business of keeping and feeding stock transported. The defendant gave the business to the plaintiff for a time, and then made default. Earl, C. (p. 592): "The defendant having repudiated the agreement, the plaintiff can recover for his land as if there had been no agreement as to the amount of the consideration, but he must allow so much of the consideration as has been paid; and if he received more in the profits of the business which the defendant brought him under the agreement than the value of his land, he can recover nothing. If the profits are less than the value of the land, then he can recover the balance.
"It was not necessary for the plaintiff to tender the profits to the defendant before the commencement of the action."1
The propriety of deducting the value of the purchaser's use and occupation, in cases like Richards v. Allen, supra, has been questioned.2 If the payments made by the purchaser, it is suggested, are made in exchange exclusively for the conveyance of title by the vendor, and not in part for the prior transfer of possession, the plaintiff's use and occupation is not a benefit conferred by the vendor in performance of his contract and in return for the benefit received from the purchaser. But the transfer of possession would seem to be an act in reliance upon the contract, if not in the performance of it. The vendor is for that reason allowed to recover for use and occupation against a purchaser in default (ante, Sec. 97). It follows that where the vendor is in default he is entitled to a deduction of the value of such use and occupation from the value of any benefit received by him.
1 Also: Collins v. Thayer, 1874, 74 111. 138; McCracken v. Sanders, 1817, 4 Bibb (7 Ky.) 511; Chapman v. Rich, 1874, 63 Me. 588; Dix v. Marcy, 1875, 116 Mass. 146; Miller v. Roberts, 1897, 169 Mass. 134; 47 N. E. 585; Masson v. Swan, 1871, 6 Heisk, (53 Tenn.) 450. See Harkness v. Mclntire, 1884, 76 Me. 201; Todd v. Bettingen, 1910, 109 Minn. 493; 124 N. W. 443; Graham v. Graham, 1909, 134 App. Div. 777; 119 N. Y. Supp. 1013.
2 Keener, "Quasi-Contracts," pp. 283-4.