The first argument advanced is that the rule denying a recovery in quasi contract to one who voluntarily fails to perform a contract of service (which, the court concedes, "has been considered the settled rule of law ") operates unequally in that the longer the plaintiff serves the more he is compelled to suffer for the breach. Says the court:1
"A party who contracts to perform certain specified labor and who breaks his contract in the first instance, without any attempt to perform it, can only be made liable to pay the damages which the other party has sustained by reason of such nonperformance, which in many instances may be trifling - whereas a party who in good faith has entered upon the performance of his contract, and nearly completed it, and then abandoned the further performance - although the other party has had the full benefit of all that has been done, and has perhaps sustained no actual damage - is in fact subjected to a loss of all which has been performed, in the nature of damages for the nonfulfillment of the remainder, upon the technical rule, that the contract must be fully performed in order to a recovery of any part of the compensation."
The inequality of the operation of the doctrine denying a recovery may be conceded. And if the doctrine rested, as the court seems to believe it rests, "upon the technical rule that the contract must be fully performed in order to a recovery of any part of the compensation," it might very properly be challenged. But it rests upon firmer ground, for the recovery is or ought to be denied not because the contract has not been fully performed, but because it has been willfully broken. Clearly, the willful contract breaker is not to be given the right to recover, merely because a denial of such right may cause him greater loss if he performs part of his engagement than if he disregards it from the beginning, or because such denial may result in a greater enrichment of the defendant in case of abandonment after part performance than in case of complete performance of the engagement. Such inequalities in the operation of the rule may be regrettable, but one whose hands are soiled by willful wrongdoing is hardly in a position seriously to complain of them.
1 At page 486. 271