Sec 747

When the failure of consideration is imputable to the plaintiff's own conduct, he cannot recover the money paid.3 Thus, when through the plaintiff's neglect to register a conveyance the title is lost to him, he cannot recover back the price.4

Sec 748

When a consideration is divisible, and the price can be apportioned, then if a distinct divisible portion of the consideration fails, the price paid for such portion may be recovered back.5 Thus, as between the parties, a bill of exchange may be apportioned into sums attributable respectively to several considerations, and may be met by the absence of failure of consideration pro tanto.6 And shrinkage of a thing purchased below its price may be set off in a suit for the purchase money when such shrinkage is imputable to the vendor.7 On the other hand, when though the consideration may be formally divisible, yet to divide it would be to destroy its utility, then a partial failure is to be regarded as a total failure;8 and such, also, is the rule when the failure is in a material matter which was one of the chief inducements to the contract.1 And as a rule, when the consideration goes to the whole price, and there is a partial failure of the consideration, there cannot be a pro tanto recovery of the price.2 If the purchaser desires to recover back, the contract must be rescinded in toto.3 He cannot hold as to part and rescind as to part.4 In cases, on the other hand, in which the consideration is divisible, the purchaser may elect to take what can be delivered to him, and in such case, if the purchase money has been paid, he can recover back the excess, or, if there has been no payment, defend pro tanto.5 The same distinction is applicable to contracts for labor. If only part of the work has been done, only (supposing the defendant did not prevent completion) a proportional part of the price can be recovered.6

When failure of consideration is imputable to plaintiff, he cannot recover.

On partial failure of consideration price when entire cannot be recovered back.

' Mitchell V. Newhall, 15 M. & W. 308.

2 Lamert V. Heath, 15 M. & W. 487. See supra, sec 520; infra, sec 749.

3 Supra, sec 312, 325, 603, 716; Barren ex parte, L. R. 10 Ch. 512; Thomas V. Brown, L. R. 1 Q. B. D. 714.

4 Straton V. Rastall, 2 T. R. 366; Stray V. Russell, 1 E. & E. 888.

5 Supra, sec 511 et seq.; Wood V. Benson, 2 C. & J. 94; Lucas V. Goodwin, 3 Bing. N. C. 746; Franklin V. Miller, 4 A. & E. 605; Johnson V. Johnson, 3 B. & P. 162; Devaux V. Conolly, 8 C. B. 640; Earl V. Page, 6 N. H. 477; Hill V. Rewee, 11 Met. 272; Young Man. Co. V. Wakefield, 121 Mass. 91; Dean V. Mason, 4 Conn. 428; Moss V. Printing.

Co., 64 Ind. 125; and see supra, sec 190; infra, sec 899. As to divisibility see sec 338, 511, 580.

6 Leake, 2d ed. 630; Darnell V. Williams, 2 Stark. 145; Clark V. Lazarus, 2 M. & G. 167; supra, sec 511.

7 Infra, sec 899, 935; Harrington V. Stratton, 22 Pick. 510; Hammett V. Emerson, 27 Me. 308.

8 Johnson V. Johnson, 3 B. & P. 162; Adlard V. Booth, 7 C. & P. 108; Covas V. Bingham, 2 E. & B. 836; see Chanter V. Leese, 5 M. & W. 628. As to divisible duty, see infra, sec 899 et seq.; as to payment on quantum meruit, see infra, sec 716 et seq.; as to destruction by casus, see supra, sec 300.