The primary obligation in quasi contract is to make restitution in value (ante, Sec. 3); hence it may be contended that the purpose and effect of the action of assumpsit, as a quasi contractual remedy, is not the recovery of damages but the enforcement of specific performance. Even so, the obligor should be compelled to answer for damages resulting from his failure to perform his obligation when it ought to be performed. In the case of money paid in misreliance on a right or duty, therefore, interest should be recoverable from the day when the cause of action for restitution arises, as damages for the defendant's failure promptly to perform his obligation. Accordingly, against one who has received and retained money in good faith, interest should be allowed from the date of notice and demand;1 against one who has received or retained money with knowledge of the payor's mistake, from the date of his receipt of the money, or of his discovery of the mistake.2 Likewise, where the benefit conferred upon the defendant consists of something other than money - as goods or services, - interest should be recovered on the value of the benefit from the inception of the cause of action. But there is little authority on this point, and the whole subject of the right to recover interest on unliquidated demands is one upon which the law is unsettled.3
1 See Lightwood, "Time Limit on Actions," p. 239; Story, "Equity Jurisprudence " (13th ed.), Sec. 1521a.
2 California Code of Civil Procedure, Sec. 338; Shain v. Sresovich, 1894, 104 Cal. 402; 38 Pac. 51.
3 Crauford's Admr. v. Smith's Extr., 1895, 93 Va. 623; 23 S. E. 235; 25 S. E. 657, (Twenty years after distribution of estate of supposed intestate, his will was discovered. Held : that the statute did not commence to run until the discovery of the will.) ; Hall v. Graham, 1911,112 Va. 560; 72 S. E. 105.
4 Leather Manfrs.' Bank v. Merchants' Bank, 1888, 128 U. S. 26; 9 S. Ct. 3; Richardson v. Bales, 1899, 66 Ark. 452; 51 S. W. 321; Schultz v. Board of Comrs., 1883, 95 Ind. 323; City of Indianapolis p. Patterson, 1887, 112 Ind. 344; 14 N. E. 551; Jones v. School District, 1881, 26 Kan. 490; Sturgis v. Preston, 1883, 134 Mass. 372, (but see Walker v. Bradley, 1825, 3 Pick. (Mass.) 261); Ely v. Norton, 1822, 6 N. J. L. (1 Halst.) 187; Montgomery's Appeal, 1879, 92 Pa. St. 202; 37 Am. Rep. 670, (overpayment by admr. who should have known condition of estate). See Turner v. Debell, 1820, 2 A. K. Marsh. (9 Ky.) 383.
5 In Wyckoff v. Curtis, 1894, 7 Misc. R. 444; 27 N. Y. Supp. 1012, however, the court held that since in New York the cause of action does not arise until demand made, the statute commences to run at that time. And inGoodnow v. Stryker, 1882, 61 la. 261; 16 N. W.486, which was an action to recover for taxes paid under a mistake as to the ownership of land, it was held that the cause of action did not arise and the statute did not commence to run, until the termination of certain litigation by which the title was adjudged to be in the defendant.
1 Georgia R., etc., Co. p. Smith, 1889, 83 Ga. 626, 10 S. E. 235, 237; Sibley v. County of Pine, 1883, 31 Minn. 201, 204; 17 N. W. 337; Ashurst v. Field's Admr., 1877, 28 N. J. Eq. 315; Leach v. Vining, 1892, 64 Hun 632; 16 N. Y. Supp. 822; Grim's Estate, 1892,147 Pa. St. 190; 23 Atl. 802; Simon's Extrs. v. Walter's Extrs., 1821, 1 McCord (S. C.) 97, 99; Crauford's Admr. v. Smith's Extr., 1895, 93 Va. 623; 23 S. E. 235; 25 S. E. 657; Hall v. Graham, 1911, 112 Va. 560; 72 S. E. 105.
2 Contra: Northrop v. Graves, 1849, 19 Conn. 548; 50 Am. Dec. 264, in which interest was allowed only from the date of demand. And see Dill v. Wareham, 1844, 7 Met. (Mass.) 438; Earle v. Bickford, 1863, 6 Allen (Mass.) 549; 83 Am. Dec. 65; Talbot v. Nat. Bank of Comm., 1880, 129 Mass. 67; 37 Am. Rep. 302, in which, although a demand was unnecessary to raise an obligation, the plaintiff was allowed interest only from the commencement of the action.
3 Sedgwick, "Damages," Sec. Sec. 312-315; Sutherland, "Damages," Sec. Sec. 347, 348. In Day v. New York, etc., R. Co., 1880, 22 Hun (N. Y. Sup. Ct.) 412, it was held that in an action to recover the value of land and a right of way conveyed to the defendant in performance of an oral contract within the Statute of Frauds, which contract the defendant repudiated, the plaintiff was not entitled to interest, even from the date of the commencement of the action. But in Tucker v. Grover, 1884, 60 Wis. 240; 19 N. W. 62, where the action was for the value of services rendered and for money paid under a contract within the Statute of Frauds interest was allowed from the commencement of the action.