Under what is known as the doctrine of substantial performance - a doctrine which has its most frequent application in cases of building and like contracts - a contractor who in good faith endeavors to perform his contract in full and who succeeds in performing it substantially, though not in strict compliance with its requirements, is allowed in many jurisdictions to recover the contract price, less compensation to the defendant for defects in the performance.3 The action, in these cases, is on the contract itself, and the obligation is in no sense quasi contractual.

In most jurisdictions it is rightly held that there can be no quasi contractual obligation in favor of a builder or other independent contractor who has willfully abandoned his engagement or wilfully departed from its terms.4 But in a few, under the doctrine of Britton v. Turner,1 a recovery is allowed.2

1 Dyer v. Jones, 1836, 8 Vt. 205.

2 Jordan v. Fitz, 1884, 63 N. H. 227, (applying Vermont law).

3 Mitchell v. Caplinger, 1911, 97 Ark. 278; 133 S. W. 1032; Keeler v. Herr, 1895, 157 111. 57; 41 N. E. 750; Elliott v. Caldwell, 1890, 43 Minn. 357 ; 45 N. W. 845; 9 L. R. A. 52; Anderson v. Todd, 1898, 8 N. D. 158; 77 N. W. 599; Nolan v. Whitney, 1882, 88 N. Y. 648; Spence v. Ham, 1900, 163 N. Y. 220; 57 N. E. 412; 51 L. R. A. 238; Foeller v. Heintz, 1908, 137 Wis. 169; 118 N. W. 543; 24 L. R. A. (N. S.) 327. For additional cases, see 30 Am. & Eng. Ency. of Law (2d ed.) 1221, n. 4. And see article by Professor Beale, "The Measure of Recovery upon Implied and Quasi-Contracts," 19 Yale Law Journal 609.

4 Sumpter v. Hedges, [1898] 1 Q. B. 673; Mawxell & Delahomme v. Moore, 1909, 163 Ala. 490; 50 So. 882; Fish v. Correll, 1906, 4 Cal. App. 521; 88 Pac. 489; McGonigle v. Klein, 1895, 6 Colo. App. 306; 40 Pac. 465; Gill v. Volger, 1879, 52 Md. 663; Elliot v. Caldwell, 1890, 43 Minn. 357; 45 N. W. 845; 9 L. R. A. 52; Johnson v. Fehse-feldt, 1908, 106 Minn. 202; 118 N. W. 797; 20 L. R. A. (N. S.) 1069, (threshing contract); Wooten v. Reed, 1844, 2 Smedes & M. (10 Miss.) 585; Stroeh v. McClintock, 1908, 128 Mo. App. 368; 107 S. W. 416; Jennings v. Camp, 1816, 13 Johns. (N. Y.) 94; 7 Am. Dec. 367, (contract to clear and fence land); Cunningham v. Jones, 1859, 20 N. Y. 486; Spence v. Ham, 1900, 163 N. Y. 220; 57 N. E. 412; 51 L. R. A. 238; Norton v. U. S. Wood Co., 1903, 89 App. Div. 237; 85 N. Y. Supp. 886; Winstead v. Reid, 1852, Busb. L. (44 N. C.) 76; 57 Am.

As to the quasi contractual rights of a contractor whose breach is unintentional or unavoidable, the law is not so clear. In some jurisdictions he is denied relief.3 But the weight of authority appears to support the just and reasonable rule that one who in good faith endeavors to perform, and whose performance, though seriously incomplete or defective, results in a benefit to the defendant which he elects to retain, may recover the reasonable value of his labor and materials, less the damages caused by his breach.1 The occupation or use of a building is undoubtedly an election to retain the benefit of its construction.2 The same is ordinarily true of the use of heating or other apparatus installed in a building. But where the occupation of one's building or the conduct of one's business necessitates the use of defective apparatus, such use, if accompanied by a request that the apparatus be either perfected or removed, is not an election to retain the benefit of its installation.1 So the use of a sidewalk, after notice that it must be either reconstructed according to contract or taken up, is not an election.2

Dec. 571; Schmidt v. North Yakima, 1895, 12 Wash. 121; 40 Pac. 790; Malbon v. Binney, 1860, 11 Wis. 107; Manitowac Steam, etc., Works v. Manitowac Glue Works, 1903, 120 Wis. 1; 97 N. W. 515. For Vermont doctrine, see Service Contracts, ante, Sec. 174 and cases cited.

1 1834, 6 N. H. 481: 26 Am. Dec. 713.

2 McKinney v. Springer, 1851, 3 Ind. 59; 54 Am. Dec. 470; McClay v. Hedge, 1864, 18 la. 66; Wolf v. Gerr, 1876, 43 la. 339, (contract to grade railway); Sheldon v. Leahy, 1896, 111 Mich. 29; 69 N. W. 76; Lee v. Ashbrook, 1851, 14 Mo. 378; 55 Am. Dec. 110; Danforth v. Freeman, 1898, 69 N. H. 466; 43 Atl. 621; Carroll v. Welch, 1861, 26,Tex. 147. And see AEtna Iron Works v. Kossuth Co., 1890, 79 la. 40; 44 N. W. 215; McKnight v. Bertram Heating, etc., Co., 1902, 65 Kan. 859; 70 Pac. 345; McMillan v. Malloy, 1880, 10 Neb. 228; 4 N. W. 1004; 35 Am. Rep. 471, (threshing contract).

3 Sinclair v. Bowles, 1829, 9 Barn. & Cr. 92, (contract to repair chandeliers); Munro v. Butt, 1858, 8 El. & Bl. 738 ; Serber v. McLaughlin, 1901, 97 111. App. 104; Simpson Cons. Co. v. Stenberg, 1906, 124 111. App. 322; Morford v. Mastin, 1828, 6 T. B. Mon. (22 Ky.) 609; 17 Am. Dec. 168; Presbyterian Church v. Hoopes, etc., Co., 1887, 66 Md. 598; Riddell v. Peck-Williamson, etc., Co., 1902, 27 Mont, 44; 69 Pac. 241; Ferney.v. Bardsley, 1901, 66 N. J. L. 239; 49 Atl. 443; Pullman v. Corning, 1853, 9 N. Y. 93; Smith v. Brady, 1858, 17 N. Y. 173; 72 Am. Dec. 442. In Smith v. Grady, supra, the court said (p. 190): "To conclude, there is, in a just view of the question, no hardship in requiring builders, like all other men, to perform their contracts in order to entitle themselves to payment, where the employer has agreed to pay only on that condition. It is true that such contracts embrace a variety of particulars, and that slight omissions and inadvertences may sometimes very innocently occur. These should be indulgently regarded, and they will be so regarded by courts and juries. But there can be no injustice in imputing to the contractor a knowledge of what his contract requires, nor in holding him to a substantial performance. If he has stipulated for walls of a given material and with a hard inside finish, he knows what he is to do and must perform it. . . . If he fails to perform when the requirement is plain, and when he can perform if he will, he has no right to call upon the courts to make a new contract for him; nor ought he to complain if the law leaves him without remedy."

1 Dermott v. Jones, 1859, 23 How. (U. S.) 220; Thomas v. Ellis, 1842, 4 Ala. 108; Davis v. Badders, 1892, 95 Ala. 348; 10 So. 422; Bertrand v. Byrd, 1844, 5 Ark. 651; Katz v. Bedford, 1888, 77 Cal. 319; 19 Pac. 523; 1 L. R. A. 826; Bush v. Finucane, 1885, 8 Colo. 192; 6 Pac. 514; Pinches v. Swedish Church, 1887, 55 Conn. 183; 10 Atl. 264; Everroad v. Schwartzkopf, 1890, 123 Ind. 35; 23 N. E. 969; AEtna Iron, etc., Works v. Kossuth Co., 1890, 79 la. 40; 44 N. W. 215; White v. Oliver, 1853, 36 Me. 92; Howell v. Medler, 1879, 41 Mich. 641; 2 N. W. 911; Eaton v. GladweU, 1899, 121 Mich. 444; 80 N. W. 292; Germain v. Union School Dist., 1909, 158 Mich. 214; 122 N. W. 524; Yeats v. Ballentine, 1874, 56 Mo. 530; Decker v. School Dist., 1903, 101 Mo. App. 115; 74 S. W. 390; McMillan v. Malloy, 1880, 10 Neb. 228; 4 N. W. 1004; 35 Am. Rep. 471, (threshing contract); Danforth v. Freeman, 1898, 69 N. H. 466; 43 Atl. 621; Woodford v. Kelly, 1904, 18 S. D. 615; 101 N. W. 1069, (contract to cut hay); Gove v. Island City, etc., Co., 1890, 19 Or. 363; 24 Pac. 521; Smith v. Packard, 1897, 94 Va. 730; 27 S. E. 586. In Pinches v. Swedish Church, supra, the court said (p. 187): "The hardship of this rule [that there can be no recovery unless the contract has been performed] upon the contractor who has undesignedly violated his contract, and the inequitable advantage it gives to the party who receives and retains the benefit of his labor and materials, has led to its qualification; and the weight of authority is now clearly in favor of allowing compensation for services rendered and materials furnished under a special contract, but not in entire conformity with it, provided that the deviation from the contract was not willful, and the other party has availed himself of and been benefited by such labor and materials."

2 Davis v. Badders, 1892, 95 Ala. 348; 10 So. 422; Bush v. Finucane, 1885, 8 Colo. 192; 6 Pac. 514; Pinches v. Swedish Church, 1887, 55 Conn. 183; 10 Atl. 264; Everroad v. Schwartzkopf, 1890, 123 Ind. 35; 23 N. E. 969; White v. Oliver, 1853, 36 Me. 92; Eaton v. Gladwell, 1899, 121 Mich. 444; 80 N. W. 292; Germain v. Union School District, 1909, 158 Mich. 214; 122 N. W. 524. And see other cases cited in note 1, supra.

In Massachusetts a contractor who has in good faith attempted to perform and who in fact has substantially performed or "done what he believed to be a compliance with the contract" 3 is not allowed to sue on the special contract,4 but may recover on quantum meruit.5