The cases denying a recovery have the support of Professor Keener. Referring to one of the decisions in which relief was granted, Cleary v. Sohier,1 he says:2 "As the plaintiff had not completed his contract, and as the defendant was deriving no benefit from the work done by the plaintiff, the house being in the course of erection, it seems impossible to support the decision except on the theory of the New York decisions, - namely, that in such a case the defendant in fact agrees to keep the building in existence." And again:3 "The ground therefore upon which the court decided in favor of the plaintiff in Lord v. Wheeler cannot be used to support the decision of the court in Cleary v. Sohier, since the defendant had not enjoyed the work done by the plaintiff by using and occupying the premises."

1 Cf. Louisville Foundry, etc., Co. v. Patterson, 1906, 29 Ky. Law Rep. 349; 93 S. W. 22, 23.

2 Keener, "Quasi-Contracts," p. 256. And see Munro v. Butt, 1858, 8 El. & Bl. 738, 753; Forman & Co., Proprietary v. The Ship "Liddesdale," [1900] A. C. 190, 204; Hanley v. Walker, 1890, 79 Mich. 607, 619; 45 N. W. 57; 8. L. R. A. 207.

2 See cases cited in note 1, page 180.

It is respectfully submitted that the doctrine of no recovery, approved by Professor Keener, is unsound. It appears to rest solely upon the hypothesis that the only profit derivable from a building is that which results from use and occupation. If such were the fact, it would follow that evidence of the complete performance of a contract for the repair or improvement of a building, without evidence of use and occupation thereof, would be insufficient to support a quasi contractual action. Yet in the cases of improvements made under contracts unenforceable because of the Statute of Frauds, or upon the property of another by mistake, neither use and occupation by the defendant nor completion of the contemplated improvement by the plaintiff appears to be regarded as essential. As a matter of fact it cannot be questioned that an incomplete and unoccupied improvement may be a benefit to the owner of the property. When such incomplete improvement actually enhances the market value of the property the benefit is obvious. But when the improvement is entered upon at the instance of the owner of the property, such enhancement of value is not essential to the derivation of a benefit, for even completion of the improvement might not result in an enhancement of value. In such a case, every unit or particle of material which, in accordance with the defendant's wish, is irrevocably appropriated to the improvement of the defendant's property, and every stroke of labor performed upon such material or upon the property improved, constitutes a benefit to the defendant, and the failure of the defendant to use or occupy such improvement - to enter into the "enjoyment" of it, - clearly cannot affect the right of recovery.

1 1876, 120 Mass. 210.

2 Keener, "Quasi-Contracts," p. 254. 3 Keener, "Quasi-Contracts,'.' p. 255.

It is not improbable that in the cases denying a recovery the courts were influenced by the fact that the very event which in these cases makes performance impossible - the destruction of the building - also puts an end to the defendant's enjoyment of or profit from the plaintiff's part performance. This gives a recovery for such part performance the appearance of hardship. But it must be remembered that the plaintiff is equally innocent with the defendant and that a hardship to one or the other is inevitable. Moreover, the defendant may and usually does insure his building, and is thereby indemnified, while the plaintiff cannot insure labor, nor materials which have become the defendant's property.