It has been held that if, at the time the impossibility occurs, the plaintiff has received part of the consideration for his performance, and the consideration is not apportionable, he can recover nothing:
Whincup v. Hughes, 1871, L. R. 6 C. P. 78: Action to recover part of the premium paid to a master by the father of an apprentice. The master died during the term of service. Bovill, C.J. (p. 81): "The general rule of law is, that where a contract has been in part performed no part of the money paid under such contract can be recovered back. There may be some cases of partial performance which form exceptions to this rule, as, for instance, if there were a contract to deliver ten sacks of wheat and six only were delivered, the price of the remaining four might be recovered back. But there the consideration is clearly severable. The general rule being what I have stated, is there anything in the present case to take it out of such rule ? The master instructed the apprentice under the deed for the period of a year, and then died. It is clear law that the contract, being one of a personal nature, the death of the master, in the absence of any stipulation to the contrary, puts an end to it for the future. The further performance of it has been prevented by the act of God, and there is thus no breach of contract upon which any action will lie against the executor. That being so, can any action be maintained otherwise than upon the contract ? The contract having been in part performed, it would seem that the general rule must apply unless the consideration be in its nature apportionable. I am at a loss to see on what principle such apportionment could be made. It could not properly be made with reference to the proportion which the period during which the apprentice was instructed bears to the whole term. In the early part of the term the teaching would be most onerous, and the services of between an agreement to receive on board, and an agreement to transport and deliver, is not a new refinement, but can be traced back to the text of the civil law. The doctrine is recognized and adopted by various authors, that if the agreement be to pay freight for the loading of the article on board, the freight is due, though the article perish in the course of the voyage. This is the language of the civil law." the apprentice of little value; as time went on his services would probably be worth more, and he would require less teaching." 1 Pinkham v. Libbey, 1900, 93 Me. 575; 45 Atl. 823; 49 L. R. A. 693: Action to recover money paid under a contract by which the plaintiff agreed to pay the defendants $75, for the service of their stallion to a mare, "with the privilege of return for the season." The service proved fruitless, and the exercise of the "privilege of return" was prevented by the sickness and death of the stallion. Whitehouse, J. (p. 578): "As before stated, the contract price was indivisible, and incapable of apportionment. The payment made by the plaintiff cannot, upon the facts of this case, be fairly deemed an overpayment. If, therefore, the plaintiff is entitled to recover anything, it must be the full amount of the contract price. But this would be unjust to the defendants. It is true the service actually had was ineffectual, and of no value to the plaintiff, but non constat that the privilege of return would have been of any value. The defendants made no engagement of warranty that any service would be successful." 2
Upon principle, this limitation or rule is difficult to sup-port. If, by "unapportionable consideration" is meant a consideration the executed part of which cannot be separately valued by reference to the terms of the contract alone - and this appears to be the interpretation of the English courts - the rule seems unreasonable. For why may not a jury ascertain the value of a defendant's part performance in these cases by evidence outside the contract, just as it is permitted thus to ascertain the value of a plaintiff's part performance in those cases in which it is the plaintiff, and not the defendant, who is prevented from fulfilling his engagement? If a consideration the executed part of which cannot be fairly valued by a jury is meant, the rule itself is not open to criticism; but in some of the cases it clearly has been misapplied. For while the value of the defendant's part performance may not always be ascertainable with mathematical exactness, it may be as closely ap-proxi ated as the value of the plaintiff's part performance in the cases, above referred to, where it is the plaintiff who is prevented from going forward. It has been held, for example, that where an attorney is engaged to defend a cause for a certain sum but dies before the determination of the suit, his administrator may recover the value of the intestate's part performance.1 Why, then, in case the attorney's fee is paid in advance, may not the client recover the amount paid, less the value of the attorney's part performance? In both cases precisely the same question goes to the jury - that of the value of the attorney's services; yet in the latter case it is said that there may be no recovery.2 In the apprenticeship cases3 the valuation of the master's part performance undoubtedly would be difficult; but in Pinkham v. Libbey, supra, it would have been a simple matter, one would think, to ascertain the value of the service of the defendant's stallion without the privilege of return, which is what the plaintiff received, and then to allow a recovery of the difference between the sum paid and that amount.
1 In Ferns v. Carr, 1885, 28 Ch. Div. 409, it was held that the father of a solicitor's articled clerk could recover no part of the premium paid to the solicitor, the solicitor having died during the term of service. Professor Scott, in a note in his "Cases on Quasi-Contracts" (p. 614), reports an Ohio case as follows: "In McCammon v. Peck, 1895, 9 Oh. Ct. Ct. 589, the sum of $1500 was paid in advance to J. M. Jordan, a distinguished attorney of Cincinnati, to carry a case to final determination. After performing services of the admitted value of $250, Jordan died, and the client brought suit to recover the unearned portion of the fee. The Circuit Court permitted recovery, in what would seem to be an unanswerable opinion; but on appeal, the judgment was reversed, without opinion by the Supreme Court, evidently acting upon the advice of Lord Mansfield to 'decide promptly, but never give any reasons for your decisions. Your decisions may be right but your reasons are sure to be wrong.' The two cases [referring to Coe v. Smith, 1853, 4 Ind. 79] are one in principle, and recovery should have been permitted in the latter as well as in the former. In both instances, however, the courts stood by the profession." But see Callahan v. Shotwell, Admr., 1875, 60 Mo. 398.
2 See also Bruce v. Indianapolis Gas Co., 1910, 46 Ind. App. 193; 92 N. E. 189.
1 Coe v. Smith, 1853, 4 Ind. 79; 58 Am. Dec. 618.
2 McCammon v. Peck, 1895, 9 Ohio Circuit Ct. 589. See Scott, "Cases on Quasi-Contracts," p. 614 n. But see Callahan v. Shotwell, Admr., 1875, 60 Mo. 398, (allowing a recovery).
3 Whincup p. Hughes, 1871, L. R. 6 C. P. 78.