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proving property which the ancestor of the defendants encouraged him to expect should become his own, and by the act of God, or by the caprice of the defendants, this expectation has been frustrated. The consequence is a loss to him and a gain to them. It is against conscience that they should be enriched by gains thus acquired to his injury. Baker and Wife v. Carson, I Dev. & Bat. Eq. Rep. 381. If they repudiate the contract, which they have a right to do, they must not take the improved property from the plaintiff without compensation for the additional value which these improvements have conferred upon the property.

The court therefore directs that it be referred to the clerk of this court, to inquire and report what is the additional value conferred on the land in question by the improvements of the plaintiff, and that he state an account between the parties, charging the plaintiff with a fair rent since the death of Andrew Griffin, and crediting him with what has been advanced towards payment for said land, and with the amount of the additional value so conferred upon it. Per CURIAM decree accordingly.

RHEA v. ALLISON ET AL.

3 HEAD (TENN.) 176.-1859.

THE complainant purchased from Williams an unimproved lot, in Knoxville, at the price of $400. She paid $60 in cash. The purchase was by parol; but the complainant took possession of the lot, and proceeded to make valuable improvements thereon. Williams. afterwards conveyed the same lot to Allison, who instituted an action of ejectment against the complainant to recover the premises. This bill was filed enjoining the action at law, and seeking an account for improvements and the purchase money paid, and asked that the same be declared a lien upon the lot. Chancellor LUCKY dismissed the bill. The complainant appealed.

WRIGHT, J.-It is settled in this state that where a man is put in possession of land by the owner, upon an invalid or verbal sale, which the owner fails or refuses to complete, and in the expectation of the performance of the contract, makes improvements, a court of equity will directly and actively, upon a bill filed by him against the owner for an account, make him compensation to the full value of all his improvements, to the extent they have enhanced the value of the land, deducting rents and profits, and will treat the land as subject to a lien therefor. Herring & Bird v. Pollard's Ex'rs, 4 Hum. 362; Humphreys v. Holtsinger, 3 Sneed 228-230. The same rule must apply to purchase money paid upon the faith of the contract.

These decisions go beyond the doctrine of the English courts,

which only allowed the value of the improvements, upon the ground, either that there was some fraud, or where the aid of the court of equity was actively sought by the owner to get possession of the estate. 2 Story's Eq., sec. 1238. Judge Story, and other law writers, speak of it as an implied trust, or lien upon the estate itself; while, in other authorities, it is called an equity. This equity exists so soon as the improvements are made-attaches itself upon the land-and becomes operative against the owner, or a purchaser from him with notice, actual or constructive. In such a case, the party making the improvements having acted bona fide and innocently, the owner, who has received a substantial benefit, ought, ex aequo et bono, to pay for such benefit. 2 Story's Eq., secs. 1236-1237. ****

If it be true, as defendant, Allison, states in his answer, that Williams had purchased the lot of Deadrick and wife, and that he had to pay $400 to them in discharge of the vendor's lien or mortgage, in order to get a deed, then, if the lot comes to a sale, to that extent he should have priority over complainant in the proceeds. 7 Yer. 168. If, however, the improvements were made upon a part of the lot, the defendant, Allison, being the purchaser of the whole, the sum paid Deadrick and wife will be apportioned ratably, according to value, upon the different parts of the lot.

The decree of the chancellor will be reversed, and the cause remanded to the Chancery Court at Knoxville, where an account will be taken upon the principles of this opinion, to ascertain the amount due complainant, and whether defendant, Allison, is entitled to priority to any, and what extent, in the proceeds of the sale of the lot or piece of ground upon which the improvements were made.1

BENDER'S ADMINISTRATORS v. BENDER.

37 PA. 419.-1860.

ASSUMPSIT brought by Jacob Bender against Samuel Rock, administrator, etc., of George Bender, deceased, with notice to the heirs, to recover damages for the breach of an alleged parol contract, made between him and his father, the said deceased, by which it was agreed that a certain tract of land should be devised to the plaintiff. The defendant pleaded non-assumpsit and non-assumpsit infra sex annos. It appeared from the evidence that, in consideration of this intended devise, the plaintiff was to maintain his father during his life, and pay the other children the sum of $1,000, at the rate of $125 per annum, commencing one year after his father's death, and move from the farm which he then occupied, to that of his father, which he did in 1849 or 1850, where he remained until

Accord, Winters v. Elliott, 1 Lea (Tenn.) 676 (1878).

his father's death in 1854; and that during that time he had expended considerable money in improvements on the farm, which was the subject of this alleged bargain. George Bender died intestate, and, on proceedings in partition, had in the Orphans' Court, the farm was adjudged to the plaintiff at the appraisement.

Verdict in favor of the plaintiff for $433.88, and judgment. LOWRIE, C. J.-By our law this contract, though not put in writing, is not entirely nugatory; but only so far so, that it passes no interest in the land, and cannot furnish any right in law or equity to demand a specific performance. But damages may be recovered for the breach of it. What damages?

Compensation for all that the plaintiff below did in pursuance of the contract, and in satisfaction of his part thereof, and for all permanent improvements made upon the land, in reliance upon the contract, with the knowledge of the defendant, and which the defendant gets the benefit of by taking back the land, deducting the value of the rents and profits of the land during the plaintiff's occu

pancy.

The making of improvements seems to us a natural consequence of relying on the contract, and the party who witnesses the making of them without objection, and then rescinds the contract, ought to pay for them. Thus we understand the court to have decided. This instruction was objected to here, but we were favored with no argument upon it, and we see no error in it. **

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Judgment affirmed.

C. BREACH OF CONTRACT.

i. Plaintiff in Default.

JENNINGS v. CAMP.

13 JOHNS. (N. Y.) 94.—1816.

THE plaintiff's declaration was in assumpsit, and contained two counts. The first count stated an agreement between the plaintiff and defendant, in the court below, dated the 1st of July, 1812, by which Camp, the plaintiff below and defendant in error, agreed to log up, burn, and clear, fit for sowing, ten acres of land on a certain lot belonging to the defendant below, the plaintiff in error, in a good, farmerlike manner, by the 20th of September, and to fence the said ten acres with a good rail fence by the 1st of October next; and the defendant below agreed to pay the plaintiff at the rate of eight dollars per acre, part to be paid in oxen, etc., and then averred performance.

The second count was a general indebitatus assumpsit for work and labor. The defendant pleaded the general issue, and the jury

found a special verdict; namely, "That the plaintiff, in pursuance of the contract and agreement mentioned in the first count, did partly clear the land in that count mentioned, but made none of the fence; and then, of his own accord, default, and negligence, and without any fault, default, or consent of the defendant, abandoned and gave up all further proceedings towards fulfilling the said contract, and hath not yet finished or fulfilled what he undertook to perform by the said contract; and whether, under these circumstances, it is competent and lawful for the plaintiff to put an end to the said contract in the said first count mentioned, and proceed on a general count for work and labor, and to recover the value of what he did in pursuance of said contract, the jury are uninformed, and pray the advice of the court," etc.; and they assessed the plaintiff's damages, on the second count of the declaration, at fifty dollars. The court below gave judgment for the plaintiff, and the cause was submitted to this court without argument.

SPENCER, J.-This case does not present the question whether, on a failure to prove the special contract, in consequence of a variance between the declaration and the proof, the plaintiff may not resort to the general count; but the point is, whether a party who enters into a contract and performs part of it, and then, without cause or the agreement or fault of the other party, but of his own mere volition, abandons the performance, can maintain an action on an implied assumpsit for the labor actually performed; and it seems to me that the mere statement of the case shows the illegality and injustice of the claim.

There are two principles, which are considered well established, precluding the plaintiff below from recovering: Ist. The contract is open between the parties, and still in force; the defendant below has done no act to dissolve or rescind it; and it was decided in Raymond and others v. Bernard, 12 Johns. 274, upon a review of all the cases, that if the special agreement was still in force the plaintiff could not resort to the general counts. 2d. The contract being entire, performance by the plaintiff below was a condition precedent, and he was bound to show a full and substantial performance of his part of the contract; this was so decided in M'Millan v. Vanderlip, 12 Johns. 166. In Cutter v. Powell, 6 T. R. 320, a sailor hired for a voyage took a promissory note from his employer for thirty guineas, provided he proceeded, continued, and did his duty as second mate, from Kingston to Liverpool. Before the arrival of the ship he died; and the court held that wages could not be recovered either on the contract or on a quantum meruit. The decision was founded on common-law principles. Lord KENYON said that where the parties have come to an express contract none can be implied, has prevailed so long as to be reduced to an axiom in the law. ASHHURST, J., very pertinently observed, this is a written contract, and speaks for itself; and as it is entire, and as the defendant's promise depends on a condition precedent to be performed by the other party, the condition must be performed before the other party

is entitled to receive anything under it; that the plaintiff had no right to desert the agreement and recover on a quantum meruit; for wherever there is an express contract the parties must be guided by it; and one party canot relinquish or abide by it as it may suit his advantage.

The case of Faxen v. Mansfield & Holbrook, 2 Mass. 147, is directly in point. Mansfield agreed with Holbrook to erect and finish a barn by a fixed day, when he was to receive $400 in full compensation; he performed part of the work, and left it unfinished, without the consent and contrary to the wishes of Holbrook. PARSONS, C. J., in giving the opinion of the court, said, on these facts, Mansfield could maintain no action, either on his contract or on a quantum meruit, against Holbrook; his failure arising not from inevitable accident, but his own neglect.

In Whiting v. Sullivan, 7 Mass. 109, PARSONS, C. J., said, "As the law will not imply a promise where there was an express promise, so the law will not imply a promise of any person against his own express declaration."

In Linningdale v. Livingston, 10 Johns. 36, we recognized a position in Buller's Nisi Prius, "that if there be a special agreement, and the work be done, but not in pursuance of it, the plaintiff may recover upon a quantum meruit; for otherwise he would not be able to recover at all." This observation has misled the court below. Correctly understood, it has no application here. It supposes a performance of the contract, with variations from the agreement, probably with the assent of both parties; or it may mean an extension of the time within which the agreement was to be performed, with the like assent. The position never was intended to embrace the case of a wilful dereliction of the contract when partly executed, by one of the parties, without the assent and against the will of the other.

Judgment reversed.1

BYRD v. BOYD.

4 MCCORD (S. C.) 246.—1827.

THE plaintiff brought suit against the defendant, on a written. contract for wages for one year, as overseer. The contract was for $180 for the year. The plaintiff managed the crop well, but in July

'In Ketchum v. Evertson, 13 Johns. (N. Y.) 359 (1816), the court says (p. 365): “It would be an alarming doctrine to hold that the plaintiffs might violate the contract and, because they chose to do so, make their own infraction of the agreement the basis of an action for money had and received. Every man who makes a bad bargain, and has advanced money upon it, would have the same right to recover it back that the plaintiffs have." Compare Eldridge v. Rowe, 7 Ill. 91, 95-99 (1845).

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