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the question arises whether, under the circumstances, a recovery can be had. Under the common-law rule the express stipulations of the contract were required to be strictly performed, and a substantial compliance with its terms was not sufficient. This rule has been much relaxed of late, and, under the recent decisions of most of the courts of this country, the performance of the contract is not, in all cases, required to be literal and exact. The more equitable rule has been generally adopted which permits a recovery by one who in good faith attempts to perform his contract, and does so substantially, although there may be a slight deviation, or some technical and unimportant omission or defect. A substantial performance, however, is still indispensable to a recovery, and a failure to carry out any material part of the contract will not amount to a substantial performance. In this case there was an important deviation from the contract of the parties, not only in the dimensions, but also in the quality of the material used in the construction of the walks. The city engineer testifies that subsills of oak material, such as were stipulated for in the contract, would last four times as long as the pine ones that were used; and the court, in one of its findings, states that the oak subsills of the dimensions required would last at least twice as long as pine subsills of the dimensions actually used. It was therefore an important and material departure from the contract, and cannot be held to amount to a substantial performance. Neither can it be said that the deviation was inadvertent or unintentional. It is admitted by the plaintiff that he noticed, in the advertisement for bids, and also in the proposal which he made to the city, that the work was to be done according to the plans and specifications in the office of the city engineer, and he also admits that he never inquired for or examined the plans before or during the progress of the work. It does not appear that there has been any waiver of the conditions of the contract by the city, and it is clear that the plaintiff cannot recover under the terms of the express contract existing between the parties.

The plaintiff, however, contends that in any event he is entitled to recover, independently of the express contract, upon a quantum meruit, and we are referred to Duncan v. Baker, 21 Kan. 99, as an authority supporting this claim. That case, and the authorities there cited, declare the doctrine now generally recognized that where contracts for personal services, or to furnish materials and perform labor, are not fully performed, but the parties for whom the work is done and the materials are furnished, accept the fruits of the contract, and receive and retain the benefits of that which has been performed and furnished, they are bound to pay what the same is reasonably worth. The law implies a promise on the part of him who elects to accept partial performance that he will pay the value of that which he receives and retains. This, however, is the extent to which the rule has been extended. In Duncan v. Baker, supra, it is said: "Of course, in all cases where the employer can refuse to accept the work, and does re

fuse to accept it, or returns it, he is not bound to pay for it unless it exactly corresponds with the contract." And where a party, by an express contract, as in this case, undertakes to furnish material and to perform labor, he is only entitled to payment according to its terms, and the law will not make for him a contract different from that which the parties have entered into. The implied liability arises, if at all, from the subsequent transactions or conduct of the parties, and if there is a substantial non-performance of the contract, as there is here, and the party for whom the materials were furnished and the labor performed refuses to accept, and does not receive or retain, any of the benefits of the contract, no such liability will arise. In this case the city engineer has not accepted the walks as constructed, although his acceptance under the contract was a condition precedent to payment therefor by the city; and since the completion of the work, he has always refused an acceptance. No one authorized by the city has accepted the work, nor does it appear from the testimony that the city has ever used or enjoyed any benefit from the walks as constructed. We are therefore of opinion that the plaintiff is not entitled to the application of the rule which he invokes, and that no right of recovery has been established by him. The judgment of the district court will therefore be affirmed.

(All the justices concurring.)



(12 Or. 459)


Filed November 16, 1885.


A., a divorced woman, living in Kansas. executed a power of attorney to B., her cousin, living in Oregon, authorizing him to lease or rent her land in that state, and to collect the rents therefrom, and, while he was acting as her agent, wrote to him to write her what he would give her in cash for the land. B. offered her $6,000 cash for all of the land, and she.accepted the offer and executed a deed to him. Before he made this offer C. had talked of purchasing a part of the land for $6,000, and, before B. sent the money to A., had offered to pay him that amount and $250 for his trouble in the matter, and told B. that if he did not accept the offer, he would notify A. that he would pay $8,000 for the whole tract. B. never informed A. of this offer, and on learning of the facts she commenced suit to compel B. to reconvey the property to her. Held, that she was entitled to a reconveyance of the land on payment to B. of the $6,000, with interest, less the value of the rentals during the time B. had possession of the land.

N. B. Knight, for appellant, Bertha E. Savage.
Tilmon Ford, for respondent, John Savage.

THAYER, J. This appeal is from the circuit court for the county of Marion. The appellant commenced a suit in that court against the respondent to have a certain deed executed by the former to the latter, on the third day of October, 1882, to certain lands in said county, canceled, and said lands reconveyed to her. She alleged in her complaint that on and prior to the third day of October, 1882, she owned said lands in fee; that in April, 1882, she executed to the respondent a power of attorney, appointing him her attorney in fact to take possession and have charge of said lands, to sell the same, execute deeds to purchasers, and do all acts necessary to carry out said power; that after executing said power of attorney she left the state and went to Kansas City, Missouri, where she remained until April, 1884; that on or about the first of October, 1882, she received through the mails an offer from the respondent of $6,000 for the whole of said lands, and, desiring to sell the same, and not knowing at the time that any greater sum of money could be obtained therefor, and relying upon the respondent's honesty and good faith, she accepted the said offer, and made him the deed; that the respondent knew that he had been offered for, as appellant's agent, before, and was offered at the said time, and could have sold, one of the parcels of the lands, a certain 124-acre tract, for the sum of $6,000 cash, and could have sold the whole of said lands for $8,000 cash; that they were reasonably worth that sum, and that he fraudulently concealed from the appellant said facts, and by reason of such suppression obtained from her the said

1See note at end of case.

deed; that she had, after learning of the fraud, offered to return him his money, and had demanded a reconveyance. The respondent denied the allegation of the complaint as to his attorneyship, the offer, value of the land, and fraud, and alleged affirmatively that since he purchased the lands he had paid out for taxes the sum of $115. Depositions and proofs having been taken, the case was heard by said circuit court, and the complaint dismissed; from which decision the appeal was taken to this court.

It appears from the testimony and proofs that the appellant was born and raised upon the lands in question; that about 1875 she married and went east with her husband; that her husband having obtained a divorce from her in 1881, she returned to Oregon and lived with her uncle, John Savage, Jr., on the lands until April 5, 1882, when she went back to Kansas City, Missouri, where she resided as alleged in the complaint; that she and the respondent are second cousins; that she was the owner of the lands; that about the sixteenth day of September, 1880, she executed to the respondent the following power of attorney:

"Know all men by these presents that I, Bertha E. Savage, of Junction City, Kansas, have made, constituted, and appointed, and by these presents do make, constitute, and appoint, John Savage, Sr., of Salem, Marion county, Oregon, my true and lawful attorney in fact for me and in my name, place, and stead, and for my use, to ask, demand, sue for, collect and receive, and receipt for all such sums of money which now or shall be or hereafter due, owing, or belonging to me in the state of Oregon, by any person or persons whatsoever; and I hereby further authorize and empower my said attorney in fact to lease or rent any and all lands now owned by me, or in which I may have any interest, in the said state of Oregon, and to collect the rents therefor, and to do everything in and about the premises as fully to all intents and purposes as I could or would do if personally present, (with full power of substitution or revocation;) hereby ratifying, confirming, and holding valid all that my said attorney shall lawfully do or cause to be done by virtue of these presents. "In witness whereof, I have hereunto set my hand and seal this day of —————————, A. D. 1880. BERTHA E. SAVAGE. [Seal.]

"Done in presence of ARTHUR P DAVIS."

That the respondent accepted the trust, and acted under said. power of attorney until the execution of the deed sought to be canceled. It is claimed by the appellant that there was a subsequent power of attorney executed by her to the respondent in April, 1882, empowering him to sell and convey the property as alleged in the complaint, but that is stoutly denied by the latter, and, in the opinion of all the members of the court, is not sustained by the evidence. It further appears from the proofs that the following correspondence, at the respective times therein mentioned, took place between the appellant and the respondent in reference to the sale and purchase of said lands: "KANSAS CITY, August 31, 1882. "DEAR COUSIN JOHN: In a letter received from Aunt Hattie a short time ago she said you were going to write and advise my selling my property there. At the time I received her letter I thought I would NEVER, NEVER sell, but

have changed my mind. There are splendid chances here every day to invest in city residence property, which would bring me each year as much as I get off from the farm in two. And more than this, property is advancing at least ten per cent. each year, and in some localities fifty. I shall always hope to some time get the little farm back again. Please give your earliest attention, --write me what you will give me for it in cash, and to facilitate matters I will answer your letter by telegram, if I accept your proposition; and any way that you can hurry the matter along, do so. Hope this will find you all well, and in the midst of a bountiful harvest, with favorable weather to assist in securing it. If I thought ma could pay me cash for the place, and as much as any one else would be willing to pay for it, she would be the one I would write to of my desire to sell, for I remember she once said, if I sold, she would like to buy it from me; and it is only natural that she should want it. Let me hear from you as soon as possible. I am real well, and enjoy myself sometimes. Have been at work this summer, you know. When you write, address me at Kansas City, Missouri, as I get my letters at the postoffice. With kind regards, I am,

"Yours, etc.,


The following is the respondent's answer to the above:

"SALEM, September 11, 1882. "DEAR COUSIN: I received yours of the 31st yesterday, and was glad to hear you was well. I did not tell Hattie I was going to advise you to sell; I told her if I could not make the land fetch in more profit, you had better sell it. I only got 360 bushels of oats, and sold them for 373 cents per bushel, and 130 bushels of wheat. I shall sell it as soon as hauled; then I will pay Ford and Stratton, and will send you what is left. I had not thought of buying your land. I was going next week to Walla Walla with my money, for I can't let it out here any more, only in small dribs. So, if you conclude to take me up at my offer, I won't go; I will give you six thousand dollars for your whole interest here; at that it will be a good while before I could get my money back. If you conclude to take me up at my offer, telegraph immediately. John is talking of buying the two other heirs out on the Miller place, -the 215 acres for $3,600. If he had not of bought the one, I would of bought it, for it is cheaper than your'n, bein' more land, and laying together. We are all well, and hope you the same. John had more wild oats than anything else, and if it ain't summer fallowed, it won't pay taxes and keep fences up. If you take me up, I will send you a check on any bank you say. I would of written before, but I wanted to see how much grain you would have. From your friend. Write often.

"Yours, etc


On the same day the letter was mailed, the respondent notified the appellant of it by telegraph as follows:

"SALEM, OREGON, September 11, 1882. "Bertha E. Savage: I have written you an offer of six thousand dollars for your full interest here. If you accept, telegraph immediately.


On September 18, 1882, the appellant telegraphed her acceptance of the offer as follows:

"KANSAS CITY, Mo., September 18, 1882. "John Savage, P. O. 330, Salem: I accept your offer; hurry papers along soon as possible. BERTHA SAVAGE."

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