The performance of one's legal obligation is necessarily a benefit to him, since it saves him the necessity either of performing the duty himself or of paying the penalty of non-performance. The protection of one's property, on the other hand, may not constitute a benefit, for one is not bound to protect his own property, and does not always regard it as worth the effort and expense necessary to its protection. This was recognized in the Massachusetts case of Earle v. Coburn,4 which was an action for the board and stabling of a horse. The plaintiff had exchanged the horse in question with the defendant for a wagon, but controversy arising, the defendant returned the horse and demanded the wagon. The plaintiff refusing to give up the wagon, the defendant sued the plaintiff for conversion, but without success. The plaintiff told the defendant, when the latter returned the horse, that he left it on his own responsibility and expense, but the defendant disclaimed ownership and responsibility. Said the court:

1 Manhattan Fire Alarm Co. v. Weber, 1898, 22 Misc. R. 729; 50 N. Y. Supp. 42.

2 Quin v. Hill, 1886, 4 Dem. (N. Y. Surrogate's Court) 69, (mother, disregarding husband's rights, directed and paid for daughter's burial); Manhattan Fire Alarm Co. v. Weber, 1898, 22 Misc. R. 729; 50 N. Y. Supp. 42.

3 Mulligan v. Kenny, 1882, 34 La. Ann. 50. There may be an exception in case of the protection of another's animal. See Great Northern R. Co. v. Swaffield, 1874, L. R. 9 Exch. 132.

4 1881, 130 Mass. 596, 598. Accord: Keith v. De Bussigney, 1901, 179 Mass. 255; 60 N. E. 614.

"There may be cases where the law will imply a promise to pay by a party who protests he will not pay; but those are cases in which the law creates a duty to perform that for which it implies a promise to pay, notwithstanding the party owing the duty absolutely refuses to enter into an obligation to perform it. The law promises in his stead and in his behalf. If a man absolutely refuses to furnish food and clothing to his wife or minor children, there may be circumstances under which the law will compel him to perform his obligations, and will of its own force imply a promise against his protestation. But such promise will never be implied against his protest, except in cases where the law itself imposes a duty: and this duty must be a legal duty."

In cases of the protection of property, therefore, it must appear that the particular property which the plaintiff intervened to protect was worth, in the defendant's eyes, as much as he is called upon to pay the plaintiff for its protection. And if the plaintiff is entitled to recover the value of his services, it would seem that the defendant should always enjoy the option of surrendering to the plaintiff the property protected instead of paying for its protection.

Sec. 199. (III) Retention Of Benefit Inequitable: Gratuitous Intervention

Although instances of benefits conferred by dutiful intervention in another's affairs are probably as frequent as those of benefits conferred by mistake, or compulsion, the topic is reduced to a comparatively narrow compass by the fact that in most cases of such intervention, the benefit is conferred without expectation of compensation, and there is consequently no injustice in the retention of the benefit.1