Whether one who has agreed to buy land or goods, or who has contracted for the services of another, and has defaulted after part payment in advance, can recover the amount paid by him, less the value of what he has received and damages resulting from his default, is a question upon which there is the usual difference of opinion and the common failure to discriminate between a willful and an unintentional or unavoidable breach. By the weight of authority relief is denied,1 but there are decisions allowing a recovery.2
11 L. R. A. (N. S.) 487; Gibboney v. R. W. Wayne & Co., 1904, 141 Ala. 300; 37 So. 436; Richards v. Shaw, 1873, 67 111. 222; Bowker v. Hoyt, 1836, 18 Pick. (Mass.) 555; Heddon v. Roberts, 1883, 134 Mass. 38; 45 Am. Rep. 276; Clark v. Moore, 1853, 3 Mich. 55; Shaw v. Badger, 1825, 12 Serg. & R. (Pa.) 275; Viles v. Barre, etc., Power Co., 1906, 79 Vt. 311; 65 Atl. 104.
1 Oxendale v. Wetherell, 1829, 9 Barn. & Cr. 386. Action to recover the price of 130 bushels of wheat sold and delivered. The defendant gave evidence to show that there was a contract for 250 bushels, and insisted that the plaintiff not having delivered more than 130 could not recover. Lord Tenterden (p. 387): "If the rule contended for were to prevail, it would follow, that if there had been a contract for 250 bushels of wheat, and 249 had been delivered to and retained by the defendant, the vendor could never recover for the 249, because he had not delivered the whole." Parke, J. (p. 387): "Where there is an entire contract to deliver a large quantity of goods, consisting of distinct parcels, within a specified time, and the seller delivers part, he cannot, before the expiration of that time, bring an action to recover the price of that part delivered, because the purchaser may, if the vendor fail to complete his contract, return the part delivered. But if he retain the part delivered after the seller has failed in performing his contract, the latter may recover the value of the goods which he has so delivered." Approved in Colonial Ins. Co. v. Adelaide Marine Ins. Co., 1886, 12 A. C. 128, 138. See Williston, "Sales," Sec. 460. Query, as to whether the seller would be allowed to recover, in England, if it appeared that the buyer had consumed the goods before the seller defaulted.