Damages. Void Contract As Measure

Damages.
Void Contract as Measure of Contractor's Right to Recover

Author(s): E. N. V.
Source: University of Pennsylvania Law Review and American Law Register , Feb., 1918,
Vol. 66, No. 3/4 (Feb., 1918), pp. 157-160
Published by: The University of Pennsylvania Law Review
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Law Review
And American Law Register
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Published by the Univerity of Pennsylvania Law School, at 236 Chestut S

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NOTES.
DAMAGES-VOID CONTRACT AS MEASURE OF CONTRACTOR'S

RIGHT TO RECOVER-When work is done or expense incurred in ac-
cordance with a contract which is void because through ignorance
or neglect some legal formality is not complied with, an interesting
problem arises concerning the rights of the several parties thereto.
Logically a void contract is a nullity; nothing has ever existed.
How then can the work be accounted for? Can the one for whom
it was done consider it as a gift and accept it with thanks? Or
must he pay for it, and how much? Can the one who does the work
be sued in trespass for coming upon the other's land and doing it?
The last question should probably be answered in the negative. The
(157)

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158 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
contract though void would at least be evidence that the work was
done on request, and was not officious intermeddling. In an action
for work and labor done by a brother a void contract to devise land
for such services was admitted to rebut the presumption that the
work was done gratuitously." But further than this most courts will
not go.
All cotirts agree that there can be no recovery upon the void
contract. For what then can there be a recovery? Where there
has been performance in whole or in part by one party may he
recover? If so, must his performance have been in accordance
with the void contract? What shall be the basis of his recovery-
the compensation stipulated in the contract, or a quantum meruitf
Most states allow some recovery. But it must be upon some
implied or quasi contract. It must be remembered that indebitatus
assutmpsit is subject to any defense which may in good morals be
raised. Hence it is necessary that the plaintiff be clearly in a better
position than the defendant in order to recover. The cases arising
under the Statute of Frauds cover the case in some jurisdictions.
But in most an oral contract under the Statute of Frauds is not
void but merely unenforceable ;-so that a contract exists upon
which rights might be predicated except that this would nullify the
effect of the statute. Thus in some jurisdictions money paid under
an oral contract for the sale of land may not be recovered if the
other party is willing to convey the land.2 This is expressly on
the theory that the contract is not void but only unenforceable.8
Similarly in some jurisdictions one who has rendered services under
an agreement within the Statute of Frauds may not recover on a
quantum meruit if the other party is willing to go on with the
contract as if it was enforceable.4 These decisions seem no more
than just. Why should one be allowed to take advantage of a
technical defense in a transaction in which he is equally blame-
worthy while the other is willing to complete the contract? How-
ever such decisions to that extent nullify the spirit if not the letter
of the statute.
But where one party has performed and the other has refused,
so that the first is clearly entitled to some compensation, he is
allowed to recover for his services their actual value without re-
gard to the contract price." This is allowed though the statute
Kettry v. Thumma, 9 Ind. App. 498 (i894).

'Coughlin v. Knowles, 7 Met. 57 (Mass. I843); Abbott v. Draper, 4
Denio 5I' (N. Y. '84) .
' Coughlin v. Knowles, see note 2, supra.
'Galvin v. Prentice, 45 N. Y. I62 (I871); Abbott v. Inslip, 29 Ohio 59
(I875).
' Steel Works v. Atkinson, 68 Ill. 42I (i873); Wallace v. Long, Io5 Ind.
522 (I885).

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NOTES 159
makes the contract absolutely void." This involves the possibility

of a person paying more than the price called for in the contract;
or in money ingtead of land.7 But this is inevitable if the con-
tract is held void. It is no hardship to put the contract in writing,
or record it, or whatever the statute provides. If persons "suffer
by not complying with the statute it is a penalty due to their own
negligence and they have no reason to complain." 8
The difficulties and apparent hardships of the strict law have
been seen by the courts of California and the contracts enforced
by a bit of legal camouflage. A statute of that state requires that
building contracts for over a certain sum shall be recorded, other-
wise they shall be void and neither party shall recover thereunder.
This statute was primarily for the benefit of mechanic's lien holders,
and naturally the first cases under it involved their rights. The
contracts were held void and the statutory consequences enforced
in favor of the lien holders.9 Then in an action between the
parties, the contract was declared void and inadmissible as evidence
of the value of the services performed in accordance therewith.10
This case was overruled by the case of Laidlaw v. Marye," on the
ground that the statute must mean absolutely void only as to the
material men and subcontractors who might have liens. The court
evaded the express stipulation of the statute by saying that "the
contract must remain, not the basis of his recovery, but the measure
and test of his right to recover." Otherwise "the contractor may
build what he pleases, in any way that suits him, and recover
where the contract has not been performed, not only the contract
price, but forty times the contract price"; "the owner will be com-
pelled to accept a barn where he expected a house, and to pay for
a structure which he never wanted or contracted for, more than he
agreed to pay for the desired edifice."
This sounds rather specious but overlooks the fact that the
contractor must lay some implied promise to pay in order to
recover anything. No jury is liable to find an implied promise to
pay for a barn when the parties attempted to make a contract for
a house at one-fortieth the price. Moreover the contractor's only
excuse for being on the property is to fulfill the contract. It being
void he only remains on the land by the grace of the owner, who,
however, will probably not exercise his right to put him off if he
at least substantially complies with the terms agreed upon. If the
owner allows him to stay on and build, he should pay him the
'Thomas v. Hatch, 53 Wis. 296 (i88I).

'Koch v. Williams, 82 Wis. i86 (I892).
' See note 7, supra.
'Williamette, etc., Co. v. College Co., 94 Cal. 229 (i892).
'?Rebman v. San Gabriel Co., 95 Cal. 390 (I892).
11 T133 C.1 70 (1901)

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160 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
reasonable value of his labor, and a contract to do so will be im-

plied. If he so neglects his rights as to allow a violation of the
terms that should be no excuse to one who has expended his money
and labor. He may in the first place refuse to allow the contractor
to enter until he has recorded the contract.
In Condon v. Donahue, 2 it is expressly stated that the statute
applies to actions between parties to the contract. But the principle
that the contract must be "the measure and test of the contractor's
right to recover," or at least the upper limit, is affirmed. A recent
case 13 holds that the void contract measures the contractor's right
to retain money paid to him and allows a recovery of a surplus
above the contract price paid by mistake.
There is a possible legal justification for this holding. Though
not a contract the writing might be regarded as an admission by
the parties of the value of the work to be done. It would as
such be admissible against a party who claimed a different value for
the work, and in that sense would be the "measure and test of the
contractor's right to recover."
However upon whatever theory this decision is supported, it
practically negatives, as far as the parties are concerned, the effect
of the statute which makes such contracts void. It seems question-
able whether such a statute enacted for the protection of many
should be negatived to avoid hardship in those few cases where the
contractor made a bad bargain and would be able to recover more on
a quantum meruit than the contract stipulated.
E.N. V.
INDICTMENT AND INFORMATION-ACCESSORIES BEFORE THE

FACT-INDICTMENT AS PRINCIPALS-At common law the offense of
being an accessory before the fact to a crime existed only when
the crime committed was a felony. If the crime committed were
treason or were a misdemeanor the procurer was a principal not
an accessory. In other words one who instigated another to com-
mit treason or a misdemeanor was a principal in the treason or
misdemeanor actually committed, but the instigator of a successful
felony was an accessory only. The distinction was, however, pro-
cedural only, the punishment meted to the accessory in felony being
the same as that suffered by the convicted principal, just as the
punishment of the procurer in treason and misdemeanor was the
same as that of the principal or misdemeanant. The procedural
differences were two: first, the instigator in treason and misde-
meanor could be tried at any time, whereas the accessory in felony
could not be put on trial until the principal had been convicted;
i6o Cal. 749 (i9II); see also Mannix v. Radke Co., i66 Cal. 333 (1913).
3 R. R. v. West, I67 Pac. 868 (1917).

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Void Contract as Measure of Contractor's Right to Recover

Stable URL: https://www.jstor.org/stable/3314391

This content downloaded from

Published by the Univerity of Pennsylvania Law School, at 236 Chestut S

$2.50 PER ANNUM; FOREIGN, $3.00; SINGLE COPIES, 65 CENTS.

J. GRIER BARTOL ERNEST N. VOTAW

*In Military Service.