plied with its requirements, yet on his failing to sustain that burden he can, by resorting to a count of quantum meruit, and by proving the value of the work done by him (which he failed to prove was a performance of what he agreed to perform), shift the burden of proof, and throw on the defendant the burden of proving that he committed a breach of the contract, and that in this way he can entitle himself to the value of that work to the same extent as he would have been entitled had that work been done in the manner in which the defendant requested to have it done, and to recover that value, unless the defendant goes forward and, by way of recoupment, cuts that amount down by proving that he (the plaintiff) committed a breach of the contract under which the work was done, and that he (the defendant) has suffered damages from that breach, and proves the amount of those damages. There are no cases in which the amount of the compensation to which a plaintiff who resorts to a recovery under the principle of Hayward v. Leonard is entitled has received deliberate consideration. But if the sole ground of his being entitled to anything is that, were he not paid something, the defendant would profit at his expense, although his claim is without merit so far as rights under the contract are concerned, it is clear that the amount which should be paid the plaintiff is the amount by which, were no payment made, the defendant would profit at his expense; that is to say, the amount which rep1esents the fair market value of the structure which, against the wishes of the defendant, has been put upon his land. * * The case at bar, then, is a case where the plaintiffs have not satisfied the architect that they did their work as required by the contract, as by the terms of the contract they had to do before they were entitled to be paid for it, and where it is expressly found by the referee that "there was no fraud or collusion between architect and defendants which caused him to withhold the certificate, and the retention by architect of certificate was, if wrong, from error of judgment. And it is a case where the plaintiffs have failed to prove that they have performed their contract in constructing the filling on which the floor rests which has given way, and where, by the finding of the referee, "the damages to defendants by reason of the sinking of the floor is in excess of the amount of plaintiff's claim." * * * The finding of the referee that the work and materials furnished by the plaintiffs in the construction of the building "are of value $1,266," is not a finding to the effect that the building, as it is, is worth. $1,266. * * * The appeal from the judgment entered by the superior court for the defendant must be sustained. SANDERS v. BROCK. (Supreme Court of Pennsylvania, 1901. 230 Pa. 609, 79 Atl. 772, Action by Albert J. Sanders against Seldon J. M. Brock. From an order discharging rule for judgment for want of a sufficient affidavit of defense, plaintiff appeals. MESTREZAT, J. ** *By an agreement in writing dated January 14, 1910, the defendant agreed to sell and convey to the plaintiff the premises at 1507 Walnut street, Philadelphia, for the consideration of $104,000, of which $1,000 were to be paid at the signing of the agreement and the balance at the time of settlement on or before, February 1, 1910. The premises were to be conveyed clear of all incumbrances and easements, and the title was to be good and marketable and subject to no restrictions. It was agreed that, if the purchaser made an additional payment of $1,000 on the purchase money, the time of settlement should be extended for a further period of 30 days from February 1st. The agreement was executed by the parties as agents for undisclosed principals. The purchaser paid $1,000 at the signing of the agreement, and the additional sum of $1,000 on or about February 1st when the time of settlement was extended to March 2, 1910. The statement, after setting forth the above facts, avers that on March 2, 1910, the plaintiff was ready and willing and offered to settle for the property according to the terms of the agreement, but the defendant was unable to convey the premises clear of incumbrances and easements and with no restrictions. * * * * The defendant filed an affidavit of defense in which he admits the execution of the contract and the payment of the $2,000 as averred in the statement. * *The affidavit denies that plaintiff was ready to settle on March 2, 1910, as alleged in the statement, and avers that on said date the defendant "was prepared to give a good and marketable title to the said property and estate called for in the said agreement and in good faith tendered a proper conveyance thereof to the said plaintiff, who, without good reason or legal excuse, positively declined and refused to take the said title or to pay the balance of the purchase money reserved and stipulated in the said agreement." The defendant admits that prior to the bringing of the suit he sold the property for a price in excess of $104,000, but avers that he did not sell "until after the plaintiff had without good cause or lawful excuse, himself violated his said agreement, and had positively refused to take title to the said property or to pay the purchase price therefor." The plaintiff bases his right to recover back the $2,000 on the fact that, the defendant having resold the property for a sum in excess of the price agreed to be paid by the plaintiff, the defendant was not injured by the plaintiff's breach of the contract and must therefore return the sum paid on the purchase money. We must deal with the case on the averments of fact in the statement and affidavit of defense. The defendant tendered the plaintiff a deed which conveyed a good and marketable title to the premises, and in every other respect he complied with the terms of the agreement. Without any just or legal excuse or cause, the plaintiff refused to accept the deed and declined to pay the unpaid purchase money. In other words, the plaintiff refused to complete the purchase, violated his contract, and compelled the defendant to retain the property. This action is assumpsit on an implied contract to compel the repayment of money had and received by the defendant for the plaintiff's use. When a purchaser of real estate declines to comply with his agreement by paying the purchase money, the vendor may, in affirmance of the contract, bring an action to compel payment of the money, or he may treat the contract as rescinded and sue for damages for its breach. The vendor, however, is not required, on the breach of the contract B.&B.Bus.LAW-15 by the purchaser, to pursue him to enforce his rights by an action at law. What the vendor is required to do, under such circumstances, is to be ready and willing at the stipulated time to perform his part of the contract and convey the real estate to the purchaser in compliance with its provisions. So long as he occupies such a position, he is not in default and has not infringed or rescinded the agreement. He, therefore, is not liable to a defaulting purchaser who has violated the contract by declining to fulfill its stipulations. "No rule in respect to the contract (for the sale of real estate) is better settled," says Nelson, J., in Hansbrough v. Peck, 72 U. S. (5 Wall.) 497, 506, 18 L. Ed. 520, "than this, That the party who has advanced money, or done an act in part performance of the agreement, and then stopped short and refuses to proceed to its ultimate conclusion, the other party being ready and willing to proceed and fulfill all his stipulations according to the contract, will not be permitted to recover back what has thus been advanced or done." * * * The plaintiff contends that the defendant, the vendor, by reselling the property rescinded the contract, and that ex æquo et bono he is entitled to have refunded the part of the purchase money which was paid on the agreement. It is upon this ground that he claims that an action for money had and received will lie. * * * Could the defendant under the circumstances at any time sell the property without being liable to the plaintiff for the purchase money paid by him? Must he forever continue to hold the property to await the offer and convenience of the purchaser, giving the latter an opportunity to complete the purchase if the property advanced in price or refuse it if its value diminished, and in the meantime subject the vendor to the risk of a loss possibly imperiling his financial standing? The law imposes no such unreasonable requirement on a party who has in good faith kept and offered to perform the stipulations of his contract. He has done his duty, and the defaulting party is not in a position to make demands of him which might subject him to financial losses. Under such circumstances, the vendor has the right to accept as final the positive refusal of the purchaser to complete the sale and take the property. * * * If the vendor still had the property, the purchaser could not demand. a conveyance to him without first tendering the balance of the money due by the contract. *** Is it reasonable or just that without such tender, after a positive refusal to pay and accept a deed at the date provided in the agreement, the vendor should be compelled to hold the property or be penalized for selling it at the demand of the other party who himself has violated the contract? This action is based on an implied contract to refund the money. The implication must arise from equitable considerations. Such action can be maintained if the vendor rescinds the agreement. He has no right in equity to refuse to carry out his part of the contract and at the same time require performance by the other party or retain what has been paid him under the terms of the contract. If he has received the purchase money, equity will compel him to refund if he declines to convey the premises. Here, however, the vendor did not rescind the agreement or refuse to convey the property, but tendered a deed and insisted upon the purchaser accepting the title which he has positively and at all times declined. The facts here, therefore, do not raise an equity in favor of the purchaser which will support an action. * * The cases decided by this court and cited by the appellant do not conflict with the rule here announced. The action in those cases was sustained on the ground that there had been a rescission of the contract by the vendor or a mutual rescission by both parties, and that under the facts the purchaser was entitled ex æquo et bono to recover back the purchase money. In other jurisdictions, a recovery has not been permitted under facts similar to those in this case. * The language used in the opinion in the last case is especially applicable to the facts of the present case. It is there said, inter alia: "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. The defendant's subsequent sale of the land does not alter the case; the plaintiffs had not only abandoned the possession, but expressly refused to proceed, and renounced the contract. To say that the subsequent sale of the land gives a right to the plaintiffs to recover back the money paid on the contract would, in effect, be saying that the defendant could never sell it without subjecting himself to an action by the plaintiffs. Why should he not sell? The plaintiffs renounced the contract, and peremptorily refused to fulfill it; it was in vain, therefore, to keep the land for them. The plaintiffs cannot, by their own wrongful act, impose upon the defendant the necessity of retaining property which his exigencies may require him to sell. This would be most unreasonable and unjust, and is not sanctioned by any principle of law." The order discharging the rule for judgment is affirmed. SECTION 15.-IMPOSSIBILITY OF PERFORMANCE AS A CONDITION A. agrees, to work for B. for a year, but his work is interrupted by a six months' jail sentence. Is A. liable? A. contracts with B. to run one hundred yards in eight seconds. A. fails; is he liable to B.? A. purchases a ticket for a baseball game. The game is called on account of rain in the first inning. May A. recover the price of his ticket? May A. hold the owners of the baseball clubs liable for breach of contract? A singer is taken seriously ill and cancels his engagements. Is he liable? A. contracts to manufacture an artillery piece that will fire a distance of two hundred miles. May he be held liable for nonperformance? A. has been out of work for many weeks on account of illness. He fails to pay his grocer, because he has no money. Is he liable? Some of these questions are not altogether easy of solution. It will be noticed that the element of impossibility may be injected. into the situation from various angles. The act or event which renders the fulfillment of the condition impossible or which makes the performance of the promise impossible is not always of the same kind. They have different origins. All of the cases mentioned may have substantially the same physical and economic effects, but should the legal effect always be the same? Would it be a just rule of law to excuse every breach of contract if the party in default proves that, for any reason whatsoever, physical, economic or otherwise, he could not perform? Obviously not, because this would include the unreasonable proposition that supervening insolvency would always discharge a debt. On the other hand, if a person who has contracted to perform personal services, by reason of impossibility brought about by physical incapacity, fails to perform his contract, justice would seem to require that the employee should be relieved of liability. It is clear, therefore, that impossibility of performance sometimes will be a defense, and also that the impossibility of the fulfillment of certain conditions will destroy a duty to perform a possible act, or will create a new right to recover what was parted with. The difficulty arises in the attempt to discover the real reasons for discharging a contract on account of impossibility-for impossibility alone will not have this effect. Only that kind of impossibility which arises in certain ways will so operate. The following cases concern themselves with this problem. Before going to the cases, it may be well to examine the general situation under discussion, with a view to relating it to the subject-matter of the preceding sections. That is, may we make use of the terminology relating to conditions? It may be said that the continued absence of the physical facts constituting the impossibility is a condition precedent to the duty of performance, or, to employ an affirmative, instead of a negative statement, the occurrence of the physical facts which introduce the element of impossibility operate as a condition subsequent to an existing duty and thereby destroy it. The condition, whether regarded as precedent or subsequent, perhaps should be regarded as implied in law rather than as a condition implied in fact. It is possible, of course, to say that the condition is implied in fact, that is, based upon the intention of the parties. But, inasmuch as, in a great many cases, perhaps a majority of them, the situation which did develop, rendering performance impossible, never entered the minds of the parties, it would seem more logical to say that the law deems the condition present as a means of effecting justice between the parties. There is this important distinction between the operation of this kind of condition and the effect of the conditions discussed in the preceding sections: When material promises are rendered impossible of performance, or when material conditions are rendered impossible of occurrence, there is not only an excuse for nonperformance; but the contract will be entirely discharged, leaving no causes of action upon the contract. If the impossibility affected only the performance of independent covenants the contract of which it was a part would not be discharged. Even where the entire contract is discharged there may be, of course, a recovery for that which has been parted with in reliance upon a performance which becomes impossible; but such recovery is upon the quasi |