* Thus, if one party is prevented from fully performing his contract by the fault of the other party, it is clear that the party thus in fault cannot be allowed to take advantage of his was paid for the work already done, and for which this action was brought The defendant objected, that the action did not lie, inasmuch as the plaintiff had not completed his contract, and as long as that was the case, the work already done was unavailable for the purpose for which it had been required. And the case of Sinclair v. Bowles, 9 B. & C. 92, in which A, having undertaken for a specific sum of money to repair and make perfect a given article, and having repaired it in part, but not made it perfect, it was held, that he was not entitled to recover for what he had done, was cited as in point. But Lord Tenterden said: "I have no doubt that the plaintiff in this case was entitled to recover. In Sinclair v, Bowles the contract was to do a specific work for a specific sum. There is nothing in the present case amounting to a contract to do the whole repairs and make no demand till they are completed. The plaintiff was entitled to say that he would proceed no further with the repairs till he was paid what was already due." Mr. Smith, in his learned note to Cutter v. Powell, 2 Smith's Lead. Cas. 12, having stated this case, and quoted the language of Lord Tenterden, says: "From these words it may be thought that his lordship's judgment proceeded on the ground that the performance of the whole work is not to be considered a condition precedent to the payment of any part of the price, excepting when the sum to be paid and the work to be done are both specified (unless, of course, in case of special terms in the agreement expressly imposing such a condition); and certainly good reasons may be alleged in favor of such a doctrine, for when the price to be paid is a specific sum, as in Sinclair v. Bowles, it is clear that the court and jury can hare no right to apportion that which the parties themselves have treated as entire, and to say that it shall be paid in instalments, contrary to the agreement, instead of in a round sum as provided by the agreement; but, where no price is specified, this difficulty does not arise, and perhaps the true and right presumption is, that the parties intended the payment to keep pace with the accrual of the benefit for which payment is to be made. But this, of course, can only be when the consideration is itself of an apportionable nature; for it it easy to put a case in which, though no price has been specified, yet the consideration is of so indivisible a nature, that it would be absurd to say that one part should be paid for before the remainder; as where a painter agrees to draw A's likeness, it would be absurd to require A to pay a ratable sum on account when half the face only had been finished; it is obvious that he has then received no benefit, and never will receive any, unless the likeness should be perfected. There are, however, cases, that for instance of Roberts v. Havelock, in which the consideration is in its nature apportionable, and there, if no entire sum have been agreed on as the price of the entire benefit, it would not be unjust to presume that the intention of the contractors was that the remuneration should keep pace with the consideration, and be recoverable toties quoties by action on a quantum meruit." See also Withers v. Reynolds, 2 B. & Ad. 882; Sickles v. Pattison, 14 Wend. 257; Wade v. Haycock 25 Penn. St 882.

So, too, if one party, without the fault of the other, fails to perform his side of the contract in such a manner as to enable him to sue upon it, still if the other party have derived a benefit from the part performed, it would be unjust to allow him to retain that without paying anything. The law, therefore, generally implies a promise on his part to pay such a remuneration as the benefit conferred upon him is reasonably worth; and to recover that quantum of remuneration, an action of indebitatus assumpsit is maintainable. (i)

(h) Planche v. Colburn, 8 Bing. 14; Goodman v. Pocock, 15 Q. B. 576; Hall v. Rupley, 10 Barr, 231; Moulton v. Trask, 9 Met. 577; Hoagland v. Moore, 2 Blackf. 167; Bannister v. Read, 1 Gilman, 92; Selby v. Hutchinson, 4 id. 319; - Webster v. Enfield, 5 id. 298; Derby v. Johnson, 21 Vt. 17. So, too, if a special action on the case is brought against the party in fault to recover damages for not being permitted to perform the contract, a reasonable compensation for what has been performed may be included in the damages. Goodman v. Pocock, 15 Q. B. 676; Derby v. Johnson, 21 Vt. 18; Clark v. Marsiglia, 1 Denio, 817.

(i) The cases bearing upon the last proposition are, it must be confessed, very conflicting. They may be conveniently arranged in three classes: - those arising on contract of sale; those arising on contracts to do some specific labor upon the land of another, as to erect buildings, or to build roads and bridges; and those arising upon ordinary contracts for service. The leading case of the first class is that of Oxendale v. Wetherell, 9 B. & C. 886. That was an action of indebitatus assumpsit to recover the price of 180 bushels of wheat sold and delivered by the plaintiff to the defendant, at 8s.

per bushel. The defendant gave evidence to show that he made an absolute contract for 250 bushels, and contended, that as the plaintiff had not fully performed his contract, he was not entitled to recover anything. But Bayley, J., before whom the cause was tried, was of opinion, that as the defendant had not returned the 130 bushels, and the time for completing the contract had expired before the action was brought, the plaintiff was entitled to recover the value of the 180 bushels which had been delivered to and accepted by the defendant. A verdict was accordingly found for the plaintiff, with liberty to the defendant to move to enter a nonsuit. But, upon a motion to that effect being made, Lord Tenterden said: "If the rule contended for were to prevail, it would follow, that if there had been a contract for 250 bushels of wheat, and 240 had been delivered to and retained by the defendant, the vendor could never recover for the 240, because he had not delivered the whole." Bayley, J.: "The defendant having retained the 180 bushels, after the time for completing the contract had expired, was bound by law to pay for the same." Parke, J.: "Where there is an entire contract to deliver a large quantity of goods, consisting of distinct parcels, within a specified time, and the seller delivers part, he cannot, before the expiration of that time, bring an action to recover the price of that part delivered, because the purchaser may, if the vendor fail to complete his contract, return the part delivered. But if he retain the part delivered, after the seller has failed in performing his contract, the latter may recover the value of the goods which he has so delivered." So also in Reed v. Rann, 10 B. & C. 441, Parke, J., said: "In some cases, a special contract not executed may give rise to a claim in the nature of a quantum meruit, ex gr. where a special contract has been made for goods, and goods sent not according to the contract are retained by the party, there a claim for the value on a quantum valebant may be supported. But then from the circumstances a new contract may be implied." And see, to the same effect, Shipton v. Casson, 6 B. ft C. 878. So, too, in Massachusetts it has been held, that if the vendee of a specific quantity of goods sold under an entire contract, receives a part thereof, and retains it after the vendor has refused to deliver the residue, this is a severance of the entirety of the contract, and he becomes liable to the vendor for the price of such part. Bowker v. Hoyt, 18 Pick. 666. And we apprehend that a similar rule would be adopted by a majority of the courts in this country. But in New York, the case of Oxendale v. Wetherell has been entirely repudiated, and it is there held, that the vendor in such a case Is not entitled to any remedy. Cham-plain v. Rowley, 13 Wend. 268. 18 id. 187; Mead v. Degolyer, 16 Wend. 682; McKnight v. Dunlop, 4 Barb. 96; Paige v. Ott, 6 Denio, 406; Oakley v. Morton, 1 Kern. 25. And so also in Ohio. Witherow v. Witherow, 16 Ohio, 288, Read, J., dissenting. - One of the most important cases in the second class is Hayward v. Leonard, 7 Pick. 181. In that case the plaintiff contracted in writing to build a house for the defendant, at a certain time, and in a certain manner, on defendant's land, and afterwards built the house within the time, and of the dimensions agreed on, but in workmanship and materials varying from the contract. The defendant was present almost every day during the building, and had an opportunity of seeing all the materials and labor, and objected at times to parts of the materials and work, but continued to give directions about the house, and ordered some variations from the contract He expressed himself satisfied with a part of the work from time to time, though professing to be no judge of it. Soon after the house was done he refused to accept it, but the plaintiff had no knowledge that he intended to refuse it till after it was finished. It was held, that the plaintiff might maintain an action against the defendant on a quantum meruit for his labor, and on a quantum valebant for the materials. It may be gathered, however, from the judgment of Parker, C. J, that he considered that one of two things must be proved in order to entitle the plaintiff to recover: - either that there was an honest intention to go by the contract, and a substantive execution of it, with only some comparatively slight deviations as to some particulars provided for; or that there was an assent or acceptance, express or implied, by the party with whom the plaintiff contracted. That such is now the received law, see Smith v. First Cong. Meeting-house in Lowell, 8 Pick. 178; Taft v. Montague. 14 Mass. 282; Olmstead v. Beale, 10 Pick. 628; Snow v. Ware, 18 Met. 42; Lord v. Wheeler, 1 Gray, 282; Hayden v. Madison, 7 Greenl. 76; Jennings v. Camp, 18 Johns. 94; Kettle v. Harvey, 21 Vt. 301; Burn v. Miller, 4 Taunt 746; Chapel v. Hickes, 2 Cromp. ft M. 214; Thornton v. Place, 1 Moody & R. 218. But see Ellis v. Hamlen, 8 Taunt. 62; Sinclair v. Bowles, 9 B. & C. 92; Wooten v. Read, 2 Smedes & M. 686; Helm v. Wilson, 4 Mo. 41; White v. Oliver, 86 Me. 98. - We are not aware that there are any cases upon contracts for service fully sustaining the proposition in the text, except the celebrated one of Britton v. Turner, 6 N. H. 481, already cited by us, ante, p. * 88, note (k). That was an action of indebitatus assumpsit for work and labor performed by the plaintiff for the defendant, from March 9, 1881, to December 27 of the same year. The defendant offered evidence to prove that the work was done under a contract to work for one year for the sum of one hundred dollars, and that the plaintiff left his service without his consent and without good cause. The learned judge instructed the jury, that although all these points should be made out, yet the plaintiff was entitled to recover, under his quantum meruit count, as much as the labor performed was reasonably worth. And this instruction was held to be correct. Parker, C. J., in delivering the judgment of the court, after noticing several of the cases cited above in the second class, said : " Those cases are not to be distinguished, in principle, from the present, unless it be in the circumstance, that where the party has contracted to furnish materials, and do certain labor, as to build a house in a specified manner, if it is not done according to the contract, the party for whom it is built may refuse to receive it, -elect to take no benefit from what has been performed, - and therefore if he does receive he shall be bound to pay the value; whereas, in a contract for labor, merely, from day to day, the party is continually receiving the benefit of the contract, under an expectation that it will be fulfilled, and cannot upon the

♦The particular subject of apportionment of rent has been considered in the first volume, Book II. ch. 3, sec. 8.