The right to restitution is said to be subject to the condition that the party seeking to exercise it shall first restore or offer to restore anything that he may have received under the contract.4
1 Keener, "quasi-contracts," p. 308.
2 Wald's Pollock, "Contracts" (Williston's ed.), p. 344, n. 31803, 1 Caines (N. Y.) 47.
4 Miner v. Bradley, 1839, 22 Pick. (Mass.) 457. Action to recover money paid for a quantity of hay. Plaintiff bought of defendant a cow and 400 pounds of hay for $17, which was paid at the time. The cow was delivered, but the defendant refused to deliver the hay. Morton, J.: "When the defendant refused to deliver the hay, it was such a violation of the contract on his part, as would have justified the plaintiff in rescinding it. And, had he done so, he would have been entitled to a return of the money which he had paid. This, however, he could only do by restoring the defendant to the situation he was in before the contract, viz. by returning the cow. But if he chose to retain her, his only remedy would be upon the special contract for damages for the convertion of the hay." See also Kauffman v. Raeder, 1901, 108 Fed. 171; 47 C. C. A. 278; 54 L. R. A. 247, (sale of stock); Los Angeles Traction Co. v. Wilshire, 1902, 135 Cal. 654; 67 Pac. 1086; Mizell v. Watson, 1909, 57 Fla. Ill; 49 So. 149, (horse and buggy); Summerall v. Graham, 1879, 62 Ga. 729, (possession of land); County of Jackson v. Hall, 1870, 53 111. 440, (repudiated bonds); Modern Woodmen v. Vincent, 1907, 40 Ind. App. 711; 82 N. E. 475, (insurance premiums); Moore v. Bare, 1860, 11 la. 198, (patent right); Clover v. Gottlieb, 1898, 50 La. Ann. 568; 23 So. 459, (horses given as part payment for land); Poche v.New Orleans Co., 1900, 52 La. Ann. 1287; 27 So. 797, (purchase price); Clark v. Baker, 1843, 5 Metc. (Mass.) 452, (part of cargo of corn); Snow v. Alley, 1887, 144 Mass. 546; 11 N. E. 764; 59 Am. Rep. 119, (money loaned); Gullich v. Al-ford, 1883, 61 Miss. 224, (profits of partnership); Doughten v. Camden Assn., 1886, 41 N. J. Eq. 556; 7 Atl. 479, (mortgage and assignment of Where, however, it is money that has been received, the rule is frequently not enforced, the plaintiff being permitted to recover the value of his own performance less the amount received by him.1
What if the res received by the plaintiff has been lost or disposed of, or if it is something of a nature that cannot be returned in specie, as services, or the protection of insurance, or the use of property? By the weight of authority, except in the case of insurance contracts, restitution is not, under such circumstances, an available remedy:
De Montague v. Bacharach, 1902, 181 Mass. 256; 63 N. E. 435: Action to recover money paid for privilege of running a restaurant in part of a basement of which the defendants were lessees. Loring, J. (p. 260): "The second ground on which the plaintiff seeks to keep his verdict is that on the breach of the contract by the defendants, he was entitled to rescind the contract and recover from the defendants what he paid under it. . . . In the case at bar, the plaintiff had enjoyed the privilege of conducting the restaurant for at least ten months; for that reason he could not put the defendants in statu quo and therefore could not rescind the contract on the defendants committing a breach of it." 2 shares); Gale v. Nixon, 1826, 6 Cow. (N. Y.) 445, (possession of land); Brown v. Witter, 1840, 10 Ohio 142, (possession of land); Fay v. Oliver, 1848, 20 Vt. 118; 49 Am. Dee. 764, (possession of land); Phelps v. Mineral Spring Heights Co., 1904, 123 Wis. 253; 101 N. W. 364, (land contract). "The offer to return the property must be continuous and kept good." - J. B. Alfree Mfg. Co. v. Grape, 1900, 59 Neb. 777, 782; 82 N. W. 11, 13.
1 Cook v. Gray, 1882, 133 Mass. 106; Connolly v. Sullivan, 1899, 173 Mass. 1; 53 N. E. 143; Siebert v. Leonard, 1871, 17 Minn.433 ; McCullough v. Baker, 1871, 47 Mo. 401; Smith v. Keith & Perry Coal Co., 1889, 36 Mo. App. 567; Moore v. Board of Regents, 1908, 215 Mo. 705 ; 115 S. W. 6; Clark v. Manchester, 1872, 51 N. H. 594 ; Wellston Coal Co. v. Franklin Paper Co., 1897, 57 Ohio St. 182; 48 N. E. 888.
2 Also: Kauffman v. Raeder, 1901, 108 Fed. 171; 47 C. C. A. 278; 54 L. R. A. 247; Snow v. Alley, 1887, 144 Mass. 546; 11 N. E. 764; 59 Am. Rep. 119, (aid to corporation in which plaintiff was interested); Gullich v. Alford, 1883, 61 Miss. 224, (profits of partnership); Fay v. Oliver, 1848, 20 Vt. 118; 49 Am. Dec. 764, (use of land). In life had purchased two scholarships in a business college and had been wrongfully expelled before completion of the courses to which he was entitled, it was held that a recovery was not barred by the fact that the plaintiff, by reason of having received some instruction, could not place the defendant in statu quo.1
But there are a few cases to the contrary. Thus, in the Massachusetts case of Brown v. Woodbury,1 decided only one year later than De Montague v. Bacharach,2 where the plaintiff, pursuant to the terms of a contract of employment, had received the benefit of the board of his father and mother for several months, the court said: "Part payment in money would not bar the plaintiff from the action on quantum meruit, and in principle part payment in board can have no different effect." And in the Georgia case of Timmerman v. Stanley,3 where the plaintiff insurance cases, by the apparent weight of authority, the insured may enforce restitution of the premiums paid, notwithstanding the fact that he has enjoyed the protection of the insurance contract up to the time of its repudiation or breach by the company, and without deducting the value of such protection. Black v. Supr. Council, Amer. Legion of Honor, 1903, 120 Fed. 580, (C. C. Ind.); aff. 123 Fed. 650; 59 C. C. A. 414; Van Werden v. Equitable Life Assur. Co., 1896, 99 la. 62; 68 N. W. 892; American Life Ins. Co. v. Mc-Aden, 1885, 109 Pa. St. 399; 1 Atl. 256. Contra: Phoenix Mut. Life Ins. Co. v. Baker, 1877, 85 111. 410; Continental Life Ins. Co. v. Hauser, 1887, 111. Ind. 266; 12 N. E. 479. The position of the courts which allow a recovery in these insurance cases may be explained, in part at least, by the fact that contracts of insurance are peculiar in that the protection enjoyed by the assured is not something which might have been sold to another if the insured had not bought it, and further in that the only value with which the company has irrevocably parted is the expense of issuing the policy and of doing the necessary bookkeeping on the insured's account. See Day v. Conn. Gen. Life Ins. Co., 1878, 45 Conn. 480; 29 Am. Rep. 693, in which it was said that the insured might recover "the equitable and just value of the policy."