When it is the defendant who fails to perform the unenforceable agreement, the plaintiff being willing to continue performance, the retention by the defendant of the benefit of the plaintiff's performance is manifestly unjust:

Richards v. Allen, 1840,17 Me. 296: Assumpsit for the value of bricks and oxen delivered in part payment under an oral contract to purchase land which the defendant repudiated. Weston, C.J. (p. 299): "The contract between the parties in regard to the farm was one, which being by parol, could not be enforced at law. It was, however, morally binding; and payments made by the plaintiff, on account of the purchase, could not be reclaimed so long as the defendant was in no fault. But if he, without any justifiable cause, repudiated the contract, and refused to be bound by it, a right of reclamation would accrue to the plaintiff, to the extent required by the principles of justice and equity."

The obligation to make restitution, under such circumstances, has been enforced in a great number and variety of cases. Money paid,1 either under an oral contract for the sale of an interest in the plaintiff paid the deposit knowing at the time that the name of the defendant did not appear on the memorandum of agreement otherwise than as 'the vendor.' She voluntarily paid the 70, with full knowledge that the vendor's name was not disclosed on the contract, and so far accepted the description as sufficient. ... In an action like the present, for money had and received, the plaintiff can only recover money paid without knowledge of the real facts - in ignorance of facts which, if they had been known, would have left the plaintiff an option whether she would pay or not. ... It is unnecessary to allude to the difference between ignorance of the law and ignorance of the facts."

1 Contract for sale of land: Frey v. Stangl, 1910, 148 la. 522; 125 N. W. 868; Brashear v. Rabenstein, 1905, 71 Kan. 455; 80 Pac. 950; Jellison v. Jordan, 1878, 68 Me. 373; Cook v. Doggett, 1861, 2 Allen (Mass.) 439; Pressnell v. Lundin, 1890, 44 Minn. 551; 47 N. W. 161; Interstate Hotel Co. v. Woodward, etc., Co., 1903, 103 Mo. App. 198; 77 S. W. 114; Whitaker v. Burrows, 1893, 71 Hun 478; 24 N. Y. Supp. 1011; Wilkie v. Womble, 1884, 90 N. C. 254; Durham v. Wick, 1904, 210 Pa. St. 128; 59 Atl. 824; 105 Am. St. Rep. 789 ; Thomas v. Sowards, 1870, 25 Wis. 631. For additional cases, see 29 Am. & Eng. Ency., 838.

land or under an oral contract not to be performed within a year, appears to be everywhere recoverable. The same is true of the value of services rendered.1 Cases of property transferred in per-formance of a contract within the statute are not quite so frequent, but the authorities agree that restitution in value may be enforced 2

The purchaser has also a lien in equity for the money paid: Lyttle v. Davidson, 1902, 23 Ky. Law Rep. 2262; 67 S. W. 34; Devore v. Devore, 1897, 138 Mo. 181; 39 S. W. 68; Vaughn v. Vaughn, 1898, 100 Tenn. 282 ; 45 S. W. 677.

Contract not to be performed within one year: Knowlman v. Bluett, 1874, L. R. 9 Exch. 307; Swift v. Swift, 1873, 46 Cal. 266; Weber v. Weber, 1903, 25 Ky. Law Rep. 908; 76 S. W. 507; Binion v. Browning, 1858, 26 Mo. 270; Bowman v. Wade, 1909, 54 Or. 347; 103 Pac. 72. See Montague v. Garnett, 1867, 3 Bush (66 Ky.) 297.

1 Contract for sale of land: Hull v. Thorns, 1910, 82 Conn. 647; 74 Atl. 925, (devise); Mills v. Joiner, 1884, 20 Fla. 479; Flowers v. Poorman, 1909, 43 Ind. App. 528; 87 N. E. 1107; Stout's Admr. v. Royston, 1908, 32 Ky. Law Rep. 1055; 107 S. W. 784; McDaniel v. Hutcherson, 1910, 136 Ky. 412; 124 S. W. 384, (devise); In re Williams, 1895, 106 Mich. 490; 64 N. W. 490, (devise); Cozad v. Elam, 1905, 115 Mo. App. 136; 91 S. W. 434; Gay v. Mooney. 1901. 67 N. J. L. 27 ; 50 Atl. 596, (devise); King v. Brown, 1842, 2 Hill (N. Y.) 485 ; Graham v. Graham, 1909, 134 App. Div. 777; 119 N. Y. Supp. 1013; Stevens' Exrs. v. Lee, 1888, 70 Tex. 279; 8 S. W. 40, (devise); McCrowell v. Burson, 1884, 79 Va. 290; Taylor v. Thieman, 1907, 132 Wis. 38; 111 N. W. 229; 122 Am. St. Rep. 943 (devise). For additional cases, see 29 Am. & Eng. Ency., 839.

Contract not to be performed within one year: Knowlman v. Bluett, 1874, L. R. 9 Exch. 307; Franklin v. Matoa, etc., Min. Co., 1907, 158 Fed. 941; 86 C. C. A. 145; 16 L. R. A. (N. S.) 381; Frazer v. Howe, 1883, 106 111. 563; Wonsettler v. Lee, 1888, 40 Kan. 367; 19 Pac. 862; Chapman v. Rich. 1874, 63 Me. 588; Williams v. Bemis, 1871, 108 Mass. 91; 11 Am. Rep. 318; Giles v. McEwan, 1896, 11 Manitoba 150; Cadman v. Markle, 1889, 76 Mich. 448 ; 43 N. W. 315; 5 L. R. A. 707 ; Spinney v. Hill, 1900, 81 Minn. 316; 84 N. W. 116; Lockwood v. Barnes, 1842, 3 Hill (N. Y.) 128; 38 Am. Dec. 620; Carter v. Brown, 1871, 3 S. C. 298. For additional cases, see 29 Am. & Eng. Ency. 839.

2 Booker v. Wolf, 1902,195 111. 365; 63 N. E. 265, (goods); Montague v. Garnett, 1867, 3 Bush (66 Ky.) 297, (goods); Bethel v. Booth, 1903, 115 Ky. 145; 72 S. W. 803, (assets and good will of a business); Richards v. Allen, 1840, 17 Me. 296, (goods); Bassett v. Bassett, 1867, 55 Me. 127, (lands); Dix v. Marcy, 1875, 116 Mass. 416, (land); Pea-body v. Fellows, 1901, 177 Mass. 290; 58 N. E. 1019, (land); Cromwell v. Norton, 1906, 193 Mass. 291; 79 N. E. 433; 118 Am. St. Rep. 499, (land) ; Todd v. Bettingen, 1910, 109 Minn. 493; 124 N. W. 443, (stock); Day v. N. Y. etc., R. Co., 1873, 51 N. Y. 583, (land).

Benefits accruing to the defendant, not from the plaintiff's performance of the contract, but from other acts of the plaintiff in reliance upon the contract, fall within the principle. Thus, taxes paid by the purchaser of land under an oral contract which the vendor repudiates or is unable to perform, are recoverable.1 The making of improvements on the land by the purchaser likewise results in quasi contractual obligation, the extent of which, however, will be hereafter separately considered (post, Sec. 102).