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Where a contractor has failed substantially to perform he may recover in quasi-contract for the value of his work less the damages caused by his breach, provided that he has not willfully abandoned the contract without justification. While the mere fact that part performance has been beneficial to a defendant will not entitle a plaintiff to recover where he has abandoned performance without justification, a defendant may nevertheless make himself liable by his voluntary acceptance of the benefits under circumstances sufficient to raise an implied promise to pay for them notwithstanding the nonperformance of the contract. Where one retains goods received in part performance of a contract, a promise to pay for them is ordinarily implied, since he has the option either to pay for or return them. Where, however, work has been done upon one's land, the benefit cannot well be returned and an acceptance of the benefit cannot be implied from the mere retention of possession of the land. In such cases therefore the better rule would seem to be that, except where there has been an actual acceptance of the work prior to its abandonment by a plaintiff, mere inaction on the part of a defendant will not be treated as an acceptance of the work from which a promise to pay for it may be implied.
Defendant was the general contractor for the construction of a garage for the Southern New England Telephone Company. The plaintiff was the defendant's masonry work subcontractor under a contract calling for a total price of $44,000. The plaintiff sued the defendant both for breach of contract, claiming that the defendant had wrongfully prevented the plaintiff's performance, and in quantum meruit for the value of the work performed. The defendant counterclaimed for breach of contract, claiming that the plaintiff wrongfully failed to complete his work. The trial court found that the plaintiff began the work on or about June 16, 1977, and abandoned it on July 11, 1977, when approximately 70 percent of the masonry work was left to be completed. The trial court rendered judgment for the plaintiff on the complaint in the amount of $9411.87 and for the defendant on the counterclaim in the amount of $10,356.36. The defendant appealed, claiming that the trial court, by awarding the plaintiff damages on the complaint, erroneously applied the applicable rule of law pertaining to damages.
Did the trial court err in awarding damages to the plaintiff?
The court reversed the decision of the trial court, holding that it was error to award plaintiff damages on his complaint. According to the court, the trial court's findings that the subcontractor wrongfully abandoned the job, that the contractor could not return the work performed by the subcontractor and that the contractor had no choice but to retain its benefits, brought the case squarely within the rule that mere inaction on the part of a defendant would not be treated as an acceptance of the work from which a promise to pay for it may be implied.