ulated compensation. His attempt to impose added financial burdens on an unwilling bailor will not be countenanced by the law. It need hardly be added that in the case of services complete, but different from the contract, as well as when the services are not completed, the bailor can render himself liable for the full compensation by waiving his right to a perfect performance and accepting such incomplete or different performance in lieu thereof.31 Whether there has been such a waiver-in other words, whether the bailor accepts as a full or merely a part performance-is to be determined from the facts of each case.3 32

Work Not Completed-Destruction of Thing Bailed Without Fault of Either Party

By the doctrine of accession, already discussed, when the bailee adds materials of his own to the bailed chattel, the title to such accessorial material passes to the bailor, as the owner of the principal thing. The bailee's labor and services are also viewed as being added to the thing as soon as they are bestowed thereon. When, therefore, the chattel is destroyed without fault, the bailee can recover pro tanto for all his materials used and labor bestowed on the chattel. As has just been pointed out, the thing perishes

88

301 Bell, Comm. (5th Ed.) pp. 455, 456; 1 Bell, Comm. (4th Ed.) §§ 391, 393; Wilmot v. Smith, 3 Car. & P. (Eng.) 453; Lovelock v. King, 1 Moody & R. (Eng.) 60; Burn v. Miller, 4 Taunt. (Eng.) 745, 749.

31 Linningdale v. Livingston, 10 Johns. (N. Y.) 36; Burn v. Miller, 4 Taunt. (Eng.) 745, 749; Dubois v. Delaware & H. Canal Co., 4 Wend. (N. Y.) 285; Hollinsead v. Mactier, 13 Wend. (N. Y.) 276.

32 The cases that present difficulty are those in which the waiver is not express, but it is sought to imply such a waiver. Where the article is of small bulk and can easily be rejected if unsatisfactory, and when the bailee is close at hand, a waiver might well be implied when no objection is made by the bailor; whereas, if the article is bulky and the bailee in such a place and at such a distance that such rejection would be much more difficult, such a waiver would be less readily implied.

83 Poth. Cont. de Louage, note 433. See, also, Story, Bailm. § 426; Gillett v. Mawman, 1 Taunt. (Eng.) 137. This was decided in an early English case, in an action by a shipwright for work and labor done, and for materials provided, in repairing the defendant's vessel. Before the completion of this work with only three hours' work remaining to be done, the ship was burned by an accidental fire. It was held that the shipwright was entitled to recover for his labor and materials. This decision was based upon the maxim that in such a case "res perit domino." Menetone v. Athawes, 3 Burrows (Eng.) 1592. Mr. Bell has deduced the following as the true rules on the subject: If the work is independent of any materials or property of the employer, the manufacturer has the risk, and the unfinished work perishes to him. If he is employed in working up the materials, or adding his labor to the property of the employer, the risk is with the owner of the thing with which

to the owner in its condition at the time it perishes. Neither party is here liable to the other, because the bailment contract cannot be completely carried out.

As before, the bailee can recover nothing, when by an entire contract he has stipulated that he shall receive no compensation whatever unless he has completely performed; but courts hesitate thus to construe the contract.34

Same-Fault of Bailor Preventing Completion of Work

When the completion of the work is prevented by the bailor's wrong, the question of compensation should present no complications. The suit is brought by the bailee, in no way at fault, under an unfinished bailment upon which he is ready and willing to proceed, but is prevented from doing so by the fault of the bailor. The law in such case endeavors to make the bailee whole again. This is done by allowing the bailee to recover from the bailor, not only the reasonable worth of the services already performed, but also full damages for all the loss that he has suffered as the result of the bailor's wrongful breach of the bailment contract.35 The bailee is thus placed in practically the same position as that which he would have occupied had he been permitted to complete the bailment. He is paid for the work already done, and receives also the profits he would have earned had he been permitted to complete the bailment.

Same-Fault of Bailee in Abandoning the Work While Incomplete

The principles laid down by the courts in this situation are many, varied, and utterly irreconcilable. The conflict is in a way an outgrowth of the widespread controversy which has raged around the great case of BRITTON v, TURNER," involving the

the labor is incorporated. If the work has been performed in such a way as to afford a defense to the employer against a demand for the price, if the accident had not happened (as, if it was defectively or improperly done), the same defense will be equally available to him after the loss. 1 Bell, Comm. p. 456.

34 Story, Bailm. § 426; Brumby v. Smith, 3 Ala. 123; Appleby v. Myers, L. R. 2 C. P. 651, 656. Though generally, where, while work is doing on a thing belonging to an employer, the thing perishes by internal defect or inevitable accident without the workman's fault, he is entitled to compensation for the work actually done, where plaintiff worked on defendants' material under an agreement that defendants would pay therefor only after delivery in good order at their store, he may not recover for work done on material destroyed on his premises, though he is blameless for the loss. Stern v. Rosenthal, 56 Misc. Rep. 643, 107 N. Y. Supp. 772.

35 See Story, Bailm. § 441; Schouler, Bailm. § 111.

366 N. H. 481, 26 Am. Dec. 713, and note, Dobie Cas. Bailments and Car

general right of one to recover on a contract which he has not fully performed. That there can be no recovery on the contract itself is generally conceded, but the battle of the cases rages around the right of a recovery on a quantum meruit for the worth of the services actually performed. Even when such a recovery is granted, the other party is always allowed to diminish the recovery by any damages that he has suffered, flowing from the breach. The particular question with which we are concerned, and about which there is such direct conflict, is this: When a bailment is not completed, owing to the fault of the bailee, can the bailee recover the excess of the reasonable value of his services performed over the damage caused to the bailor by the bailee's failure to complete the bailment ? 87 Some courts answer generally in the affirmative; 38 others give a negative reply and refuse the bailee any

riers, 88. See, also, Cutter v. Powell, 6 Term R. (Eng.) 320, 3 R. R. 185, and a collection of the cases, involving the entirety of contracts based on Cutter v. Powell, in 2 Hughes on Procedure, 892. In Cutter v. Powell, however, as opposed to BRITTON v. TURNER, the contract was not broken by the party, but he died leaving it unperformed in part. In BRITTON v. TURNER, a laborer who agreed to work a specified time for an extra sum abandoned the contract after working a part of the time. He was permitted to recover on a quantum meruit the value of his services in excess of the damage caused to his employer by such breach of contract. The doctrine of this great case is believed to be sound.

37 Neither BRITTON v. TURNER, supra, nor Cutter v. Powell, supra, involved a bailment. Indeed, most of the cases cited are contracts of service, and not bailments at all. The analogy is a good one, however, and the right of the party breaking the contract to recover is governed by the same principles, whether or not a technical bailment be created.

88 See BRITTON v. TURNER, supra; Larkin v. Buck, 11 Ohio St. 568; McClay v. Hedge, 18 Iowa, 66; Hillyard v. Crabtree's Adm'r, 11 Tex. 264, 62 Am. Dec. 475; McDonough v. Evans Marble Co., 112 Fed. 634, 50 C. C. A. 403 (this case speaks of the doctrine permitting a recovery as "the more modern rule"); Duncan v. Baker, 21 Kan. 99; Bedow v. Tonkin, 5 S. D. 432, 59 N. W. 222; Watson v. Kirby, 112 Ala. 436, 20 South. 624. These are cases of contracts of service, not bailments. Mr. Parsons, in his great work on Contracts (volume 2 [6th Ed.] 38, 39), thus approves the rule of BRITTON v. TURNER: "BRITTON v. TURNER permits the servant to recover on a quantum meruit. His right to recover is carefully guarded in this case by principles which seem to protect the master from all wrong. So guarded, it might seem that the principles of this case are better adapted to do adequate justice to both parties and wrong to neither than those of the numerous cases which rest upon the somewhat technical rule of the entirety of the contract." Mr. Page, however (3 Page, Cont. § 1604), after discussing the cases following BRITTON v. TURNER, remarks: "In studying the prin ciples here discussed, as enforced by the courts, one is sometimes driven to inquire whether a special contract means anything."

recovery;" others give a qualified answer,10 holding that it depends on whether the bailment contract is a general or special one, or whether the abandonment of the bailee was or was not willful or malicious, and so on.

Thus some of the older cases hold that the bailee must here stand rigidly by the contract, and that, when he is in fault in not completing it, he should not be permitted to recover. This rule was applied, even though a great part of the work had been completed, conferring a substantial benefit on the bailor, who was thereby gratuitously enriched. This doctrine, emphasizing the technical unity and entirety of contracts, is too extreme for a large majority of the modern courts.

Other courts, modifying the severity of this rule, have permitted the bailee to recover on the quantum meruit when the contract is a general one of hiring, but have refused such a recovery when the contract is a special one, explicitly stating the way the bailment services are to be performed and agreeing on a specified price. It has been a generally held technical rule that,

42

39 Olmstead v. Beale, 19 Pick. (Mass.) 528; Forman v. The Leddesdale, [1900] App. Cas. (Eng.) 190; Hansbrough v. Peck, 5 Wall. 497, 18 L. Ed. 520; Scheible v. Klein, 89 Mich. 376, 50 N. W. 857; Elliott v. Caldwell, 43 Minn. 357, 45 N. W. 845, 9 L. R. A. 52; Van Clief v. Van Vechten, 130 N. Y. 571, 20 N. E. 1017; Harris v. Sharples, 202 Pa. 243, 51 Atl. 965, 58 L. R. A. 214; Vicksburg Water Supply Co. v. Gorman, 70 Miss. 360, 11 South. 680. See 3 Page, Contracts, § 1603.

40 STEEPLES v. NEWTON, 7 Or. 110, 33 Am. Rep. 705, Dobie Cas. Bailments and Carriers, 91; Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762; Id., 23 How. 220, 16 L. Ed. 442; Barrett v. Raleigh Coal & Coke Co., 51 W. Va. 416, 41 S. E. 220, 90 Am. St. Rep. 802; Walsh v. Fisher, 102 Wis. 172, 78 N. W. 437, 43 L. R. A. 810, 72 Am. St. Rep. 865. See 3 Page on Cont. § 1602; Ellis v. Hamlen, 3 Taunt. (Eng.) 53; McMillan v. Vanderlip, 12 Johns. (N. Y.) 165, 7 Am. Dec. 299.

41 Cutter v. Powell, 6 Term R. (Eng.) 320, 2 Smith, Lead. Cas. 1212, is the extreme case, in which a seaman died before completing the voyage and time contracted for. It was held that his personal representatives could recover nothing. Such cases, however, are now rare.

42 Farnsworth v. Garrard, 1 Camp. (Eng.) 38; Basten v. Butter, 7 East (Eng.) 479; Cutler v. Close, 5 Car. & P. (Eng.) 337; Thornton v. Place, 1 Moody & R. (Eng.) 218; Grant v. Button, 14 Johns. (N. Y.) 377; Ellis v. Hamlen, 3 Taunt. (Eng.) 53; Cousins v. Paddon, 2 Cromp., Mees. & R. (Eng.) 547; Burn v. Miller, 4 Taunt. (Eng.) 745, 747; Taft v. Inhabitants of Montague, 14 Mass. 282, 7 Am. Dec. 215; Jewell v. Schroeppel, 4 Cow. (N. Y.) 564; Sickels v. Pattison, 14 Wend. (N. Y.) 257, 28 Am. Dec. 527; Sinclair v. Bowles, 9 Barn. & C. (Eng.) 92; Clark v. Smith, 14 Johns. (N. Y.) 326; Raymond v. Bearnard, 12 Johns. (N. Y.) 274, 7 Am. Dec. 317; Jennings v. Camp. 13 Johns. (N. Y.) 94, 7 Am. Dec. 367; Faxon v. Mansfield, 2 Mass. 147; McMillan v. Vanderlip, 12 Johns. (N. Y.) 165, 7 Am. Dec. 299; Champli V. Butler, 18 Johns. (N. Y.) 169.

when a special contract is open and subsisting, one cannot recover on an implied contract, unless he can show an excuse for his departure from such special contract.

When the bailee's recovery is based upon considerations of whether or not his abandonment was voluntary, or willful or malicious, this substitutes a criterion of morality and public policy for contractual technicality. Courts denying a recovery when the abandonment was willful hold that it contravenes sound morality to permit a person to obtain any recovery for work done under a contract which he has voluntarily abandoned with no excuse for such conduct.**

It is submitted, though the weight of authority seems now against it, that the question propounded should be answered in the affirmative, without any of the qualifications mentioned. The ground of the bailee's recovery is not based upon, but is rather in spite of, the specifie contract. He recovers for a benefit conferred on the bailor's goods, a step in line toward the realization of what the bailor desired, on the principle that the bailor should not be permitted to enjoy such benefit without paying therefor its reasonable worth, and that therefore the law implies that he will make a reasonable compensation therefor. The broken contract does not help the bailee to recover, but retards his recovery. The bailee seeks no benefit from his contractual breach, but such breach imposes on him the burden for all loss thereby occasioned. Again, the fullest remedy is given to the bailor for the wrong done to him, for he is credited with all his loss flowing from the wrong; he is awarded full compensatory damages. Beyond this, the law goes only in very few cases. Should the law, then, for the bailee's breach, gratuitously enrich the bailor, and punish the bailee by causing him to forfeit the value of all his work, labor, and materials? It is believed that it should not.

Finally, it should be noted that the parties may stipulate clearly, in express terms, that the bailee is to receive no compensation. unless he completely performs the bailment contract. Under such an agreement, the bailee, to whose fault is due the failure to

48 Barrett v. Raleigh Coal & Coke Co., 51 W. Va. 416, 41 S. E. 220, 90 Am. St. Rep. 802; Walsh v. Fisher, 102 Wis. 172, 78 N. W. 437, 43 L. R. A. 810, 72 Am. St. Rep. 865; STEEPLES v. NEWTON, 7 Or. 110, 33 Am. Rep. 705, Dobie Cas. Bailments and Carriers, 91; Gallagher v. Sharpless, 134 Pa. 134, 19 Atl. 491; Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762; Homer v. Shaw, 177 Mass. 1, 58 N. E. 160; Posey v. Garth, 7 Mo. 94, 37 Am. Dec. 183.

44 Hogan v. Titlow, 14 Cal. 255; Kohn v. Fandel, 29 Minn. 470, 13 N. W. 004; Hartman v. Meighan, 171 Pa. 46, 33 Atl. 123; Fairfax Forrest Min. & Mfg. Co. v. Chambers, 75 Md. 604, 23 Atl. 1024; Bonesteel v. Mayor, etc., of City of New York, 22 N. Y. 162; Thrift v. Payne, 71 Ill. 408.