If one who is himself in default under a contract within the statute is to be permitted under any circumstances to recover the value of his part performance from one who is ready and willing to perform, a demand should certainly be required before suit brought (ante, Sec. 32).3 On the other hand, where the action is brought by one who is willing to proceed with performance against one who fails or refuses to carry out his engagement, a demand is obviously unnecessary (ante, Sec. 32). In such a case the obligation arises when default occurs 4 and the statute of limitations runs from that time.5
If money or property received under a contract unenforceable because of the statute is used by the recipient, the value of such use is a part of the benefit that ought to be restored. And,without regard to the question of use, interest on the value of the benefit received should always be allowed from the date of the inception of the obligation, as damages for the failure promptly to perform it (see ante,
1 McCracken v. Sanders, 1817, 4 Bibb (7 Ky.) 511; Ford v. Stroud, 1909, 150 N. C. 362; 64 S. E. 1; Treece v. Treece, 1880, 5 Lea (73 Tenn.) 220; Clark p. Davidson, 1881, 52 Wis. 317; 10 N. W. 384. In Fox's Heirs v. Longly, 1818, 1 A. K. Marsh. (8 Ky.) 388, it was erroneously said that the plaintiff was accountable for rents until there was a denial of his right or an assertion of title by the vendor.
2 See Ford v. Stroud, 1909, 150 N. C. 362; 64 S. E. 1.
3 Abbott v. Draper, 1847, 4 Denio (N. Y.) 51; Marsh v. Wyckoff, 1863, 10 Bosw. (N. Y. Superior Ct.) 202; Tucker v. Grover, [First Case] 1884, 60 Wis. 233; 19 N. W. 92.
4 Frey v. Stangl, 1910, 148 la. 522; 125 N. W. 868, 870. Contra: Tucker v. Grover, [Second Case] 1884, 60 Wis. 240; 19 N. W. 62.
5 Collins v. Thayer, 1874, 74 111. 138; Lyttle v. Davidson, 1902, 23 Ky. Law Rep. 2262; 67 S. W. 34; Richards v. Allen, 1840, 17 Me. 296; Estate of Kessler, 1894, 87 Wis. 660; 59 N. W. 129; 41 Am. St. Rep. 74.
Sec. 34). Apparently without recognizing the distinction between interest as a part of the principal obligation, and interest as damages, it has been held that interest on money paid may be recovered from the date of its payment.1 As to interest on benefits other than money, it was held, in a case of a claim for money paid and services rendered, that interest was recoverable only from the date of the commencement of the action;2 and, in a case of property conveyed, that interest was not recoverable at all.3
1 Reid v. Reid, 1911, 141 Ky. 402; 133 S. W. 219, (but see Padgett v. Decter, 1911, 145 Ky. 227; 140 S. W. 152, allowing interest from beginning of action to eject plaintiff) ; Winters v. Elliot, 1878, 1 Lea (69 Tenn.) 676; Smoot v. Smoot, 1883, 12 Lea (80 Tenn.) 274; Vaughn v. Vaughn, 1898, 100 Tenn. 282; 45 S. W. 677.
2 Tucker v. Grover, [Second Case] 1884, 60 Wis. 240 ; 19 N. W. 62.
3 Day v. New York etc. Ry. Co., 1880, 22 Hun (N. Y. Sup. Ct.) 412.