The third point made by the court is that the case of service contracts is not distinguishable from those of building and sales contracts, in which one who commits a breach is permitted to recover in quasi contract the value of the benefit conferred by part performance:1

1 At page 487. 272

"The party who contracts for labor merely, for a certain period, does so with full knowledge that he must, from the nature of the case, be accepting part performance from day to day, if the other party commences the performance, and with knowledge also that the other may eventually fail of completing the entire term. If under such circumstances he actually receives a benefit from the labor performed, over and above the damage occasioned by the failure to complete, there is as much reason why he should pay the reasonable worth of what has thus been done for his benefit, as there is when he enters and occupies the house which has been built for him, but not according to the stipulations of the contract, and which he perhaps enters, not because he is satisfied with what has been done, but because circumstances compel him to accept it such as it is, that he should pay for the value of the house."

As to this argument it need only be said that the analogy relied upon by the court fails utterly, in that none of the cases of building and sales contracts cited in the opinion appears to be a case of willful breach. And the distinction, while very frequently overlooked, is a vital one.