If the promisee has performed so far as he has gone, and the promisor breaks his promise, the promisee may abandon the contract and sue for restitution, in which he can recover the reasonable value of his services, measured by what he could have got for them in the market, and not by their benefit to the promisor.
Appellee lumberman filed an action against appellant landowners to recover for the sale of all his horses, logging and camp equipment, for losses suffered during previous logging seasons, and for the continuation of his logging services. Appellants tried to prove that the work had been ill done. The trial court awarded judgment to appellee for payments due and reserved jurisdiction to determine whether future installments were paid when due. The appellate court reversed the trial court’s judgment and ordered a new trial.
Was appellee lumberman entitled to recover for the sale of all his horses, logging and camp equipment, and for losses suffered during previous logging seasons, and for the continuation of his logging services?
It was an error to charge that appellant landowners had the burden of proof to show that appellee lumberman did not perform, because appellee had the burden of showing that he had performed, since only then were appellants in default. Also, the action was for restitution of the consideration performed by appellee and, should he fail to prove a breach but succeed in satisfying the jury that his failure to perform was not willful and deliberate, he must be limited to the contract price for his services, even though the jury thought the benefit to appellants was greater. The district court also erred when it reserved the power to enter future judgments.