Other illustrations of the sound possibilities of the novel explanation of court action here advanced might be given, but this article does not purport to exhaust the authorities, nor even to mention many of them, and does not pretend to canvass all possible situations, so probably it is wise to consider, in closing, only the light which the foregoing explanation throws on the interesting question of whether, where a plaintiff is given the alternative of suing a defendant in wilful default under an express contract either for the normal express contract measure of damages or for some special measure of damages, his choice is between an express contract remedy and a quasi-contractual one, or whether it is merely between alternative remedies on the contract. As Professor Woodward has pointed out,29 the question is whether the only primary obligation is the obligation to perform the express contract and hence the only primary right the right to such performance. There may be several primary rights, one to the performance agreed, another to performance under an implied-in-fact contract to pay reasonable compensation for what is done at request if later there is repudiation by the defendant, regardless of whether the defendant is actually enriched, and still another to have the defendant hand over to plaintiff any enrichment secured by defendant at plaintiff's expense through the performance. Again, the measure of damages helps us to a conclusion. In some cases, at least, it seems clear that the impliedin-fact theory is necessarily adopted, because the recovery is not at the express contract rate and is not reduced to the amount of defendant's enrichment.30 If there is an implied-in-fact contract primary right, the fact, if it be a fact, that it comes into existence at the time of the repudiation of the express contract, need not make it an alternative right on or under that express contract, and the same thing is true of a quasi-contractual right if one exists and if 29 WOODWARD, QUASI CONTRACTS, § 260.

10 See 13 C. J. 694. “But where, as in this case, the plaintiffs are prevented from performing the contract, they are entitled to recover, if at all, what their work and labor is worth, whether it was of value to the defendant or not." Cahill, J., in Mooney 1. York Iron Co., 82 Mich. 263, 265, 46 N. W. 396 (1890), quoted with seeming approval in Jenson v. Lee, 67 Kan. 539, 73 Pac. 72 (1903).

right nor but, where the party suing is not responsible for the breach, neither the (the amount of the recovery depends upon the measure of benefit received

by the party guilty of the breach." McGrath, J., in Hemminger v. Western Assurance Co., 95 Mich. 355, 358, 54 N. W. 949 (1893). See note 23, supra.

it is more worth while for the plaintiff to base his action on it. It would seem as if there are three primary rights and not merely one, though they may date from different times. It is quite as easy to say that as to say that there is only one primary right—that on the contract with several remedial rights.31 In any event, in Michigan, in view of the cases cited in note 30, there would clearly seem to be at least two primary contract rights, one on the express contract and one on the implied-in-fact contract, with the plaintiff compelled to elect which he will enforce.

In order that it may not be forgotten that the law of trusts presents a problem on all fours with this, the writer wishes to repeat what he wrote several years ago in a book review discussion of the implied-in-fact contract problem, namely:

"Perhaps an illustration from another subject will make clearer the point here attempted to be stated. Take the so called case of a resulting trust in land, where the grantee makes an oral promise to hold in trust. A pays the purchase price for land to B, the grantor, and has the title conveyed to C in fee, C not being related to A, and the conveyance being made to C on C's oral promise to hold in trust for A. In the absence of the statute of frauds, a court of chancery would say: 'This is an express trust and will be enforced as such.' But the English statute

31 The fact that the right to recover the amount of defendant's unjust enrichment arises because the plaintiff's expectation that the defendant would perform in full under the contract has been disappointed, does not seem enough to brand the right as contractually remedial. The reasons of circumstance which cause quasi-contractual rights to arise have nothing to do with their nature as rights. Both contract and noncontract situations may result in redressable unjust enrichment, and the nature of the obligation enforced is the same no matter which kind of situation gives it rise. The only satisfactory way to distinguish a quasi-contractual obligation from a contractual, now that both the form of the action and the lack of a meeting of the minds of the parties leave us in doubt, is by the rule of damages applicable in the given case. If, as in this case of a choice of remedies for repudiation of an express contract, the measure of damages where the one remedy is pursued is contractual and where the other is pursued is quasi-contractual, there would seem to be no profit in talking of the right vindicated by the quasi-contractual damage recovery as a remedial contract right. In England the express contract's repudiation, and in the United States either that contract's repudiation or its substantial breach, would seem to be but a circumstance precedent to the coming into existence of the quasi-contractual primary right. The breach of contract but discloses the fact that defendant has been unjustly enriched through plaintiff's performance, and, while such breach is the occasion of the quasicontractual right arising, the remedy is not on that account one on the contract. So, too, if a true analysis of the situation discloses behind the express contract an impliedin-fact contract, the remedy on it is not one on the express contract, but, instead, we have still a third primary right to enforce.

of frauds provided, and the American statutes have similar provisions, that trusts of land not 'manifested and proved' by writing, signed by the proper party, or by such party's will, shall be 'of none effect,' and because of that statute, the express oral trust cannot be enforced. That, however, does not preclude action by chancery, for in the absence of the express oral trust and of any evidence of a gift as intended, chancery would have indulged the presumption of fact of a trust relationship between C and A, and even the presence of the express oral trust, since that express oral trust is unenforcible, will not prevent the same presumption. At any rate, that is the judicial way of regarding the matter, even though it may be somewhat artificial. Such a presumed trust is an implied in fact trust, since the presumption is rebuttable, and it can and will be enforced because the English statute of frauds, which made 'of none effect' express oral trusts, and the American statutes modeled on it, dispensed with the necessity of a writing 'where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by the implication or construction of law,' and because this kind of resulting trust is deemed to be covered by that language. Back of the express oral trust is held to be that implied in fact trust ready to take effect if and when the express oral trust cannot. (Robinson v. Leflore, 59 Miss. 148. See Brennaman v. Schell, 212 Ill. 356.) The implied in fact resulting trust is not the same as the express oral trust, although it may be treated like an express trust so far as the application of the statute of limitations is concerned. (Lufkin v. Jakeman, 188 Mass. 528. See Whetsler v. Sprague, 224 Ill. 461.) Now, suppose for some reason say a statute enacting that the payer of the purchase money shall not enforce a resulting trust — this implied in fact resulting trust also must be ignored. Then a constructive trust for the payer of the money, the oral cestui defrauded by a retention of the property by C, should be enforced if C acquired the title with an intent not to perform, and also — though in view of the statute against resulting trusts supposed this next statement is arguable on principle as well as on the authorities - if C acquired title with honest intent, but in addition to refusing to perform the oral trust, has appropriated to his own use the trust res. Thus it has been held that back of the express oral trust, and ready to take its place when a failure of justice would otherwise occur, was and is the implied in fact resulting trust, and it seems that back of that, ready for the emergency caused by the statutory interference with the resulting trust, was and is the implied by law constructive trust.32 In a similar way it may yet be held expressly that

"On the general trust problem see Stone, "Resulting Trusts and the Statute of Frauds," 6 COL. L. REV. 326; Costigan, "Trusts Based on Oral Promises to Hold in

1

back of an attempted but imperfect express contract, or of an express oral contract unenforcible because of the statute of frauds, there is an implied in fact contract to pay the reasonable value of services rendered or materials furnished, regardless of enrichment or loss, and that back of the implied in fact contract, in reserve in case something makes that implied in fact contract unenforcible, lies the obligation implied in law on the ground of unjust enrichment known as the quasi-contract.33 The courts have paved the way for that very view.

"To recapitulate, there would seem to be at least two kinds of anomalous contracts, namely: 1. Those which under the sensible and efficient 'rules of the game' of making contracts are recognized and enforced as contracts despite the lack of a genuine meeting of minds; and 2. Those which are implied in fact because the attempt of the parties to form an express contract proves ineffectual, because they learn of their failure to enter into an express contract only after they have gone so far with performance that the status quo cannot be restored and because the rule for measuring damages which is to be applied if the contract implied in fact view is adopted is the just rule for the case. No one has yet advocated that the first kind of anomalous contracts should be dealt with apart from other contracts; and, on the other hand, hardly anybody has yet come to realize that the second kind exists, for the second kind is still regarded as a quasi contract to which justice requires that a contract measure of damages shall be applied." 34

And now, perhaps we may venture to consolidate our gains. It was conceded at the start that Professor Williston is absolutely right in his contention that the no-meeting-of-the-minds express contracts the objective but not subjective test contracts are properly to be denominated contracts instead of quasi-contracts, and the reason for that concession was that on their breach the normal contract measure of damages is applied. But that same reason has led us to the further conclusion that there are genuine implied-in-fact contracts of both the meeting-of-the-minds and the

Trust, to Convey, or to Devise, Made by Voluntary Grantees," 12 MICH. L. Rev. 423, 515.

33 Compare National Granite Bank v. Tyndale, 176 Mass. 547, 57 N. E. 1022 (1900), where a married woman who had avoided her notes because made payable to her husband's order and indorsed by him was held liable on the original debt created by the loan to her. That original contract obligation was back of the notes ready to take their place in the emergency which arose.

34 From a book review in 8 ILL. L. Rev. 68, 73, 74. That material in a book review is practically buried is the excuse for printing it here.

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no-meeting-of-the-minds varieties.35 That conclusion is quite unorthodox and doubtless will draw protests both from writers on contracts and from writers on quasi-contracts; but there it is. Mere protests will not avail against a prima facie case made out by the aid of the law of damages. Perhaps the protests will be more against the use of the phrase implied-in-fact than against the idea here covered by the phrase. If so, the protests may quickly be eliminated by the adoption of a new name. The phrase implied3 The enlarged view of implied-in-fact contracts here advocated may lead to greater charity in the consideration of what have been deemed strictly express contract cases. The case of Wheeler v. Klaholt, 178 Mass. 141, 59 N. E. 756 (1901), for instance, has offered serious difficulty from the express contract point of view. There the express offer was to sell for "net spot cash at once " shoes which belonged to the offeror but by mutual mistake of the parties were in the possession of the offeree, the offer specifying that the offeree should return the goods "immediately" or "at once" if the offer was not accepted. Though net spot cash was not forthcoming, the court held that the jury could find from the silence of the offeree, and his failure to return the shoes for about a month, the previous relations of the parties calling for speech, an acceptance of an offer to sell, with payment, presumably, to be due at once without demand. That would seem to be binding the parties by a contract different from that contemplated by the express offer, but it may perhaps be an instance of a no-meeting-of-the-minds implied-in-fact contract, the conduct of the offeror being such that it must receive the interpretation "Unless you send the cash or else in a reasonable time return the goods, you will be deemed to buy them and we shall hold you for the price," and the offeree's silence and failure to return the goods in a reasonable time having the significance which the jury may see fit to attach to it. It is not intended here to defend the decision, but merely to suggest that as an implied-in-fact contract decision it is understandable, though as merely an express contract decision it is incapable of comprehension, let alone of support. The recognition of merely objective test implied-in-fact contracts throws the light of understanding on many otherwise dark decisions, even if it does not lead to sympathetic appreciation of them. It may even supply the proper solution of the troublesome problem of what shall be the effect of an attempted revocation of an offer of unilateral contract where the notice of revocation comes after the offeree has started to accept and while he is still continuing to perform the acts of acceptance. See WILLISTON'S WALD'S POLLOCK ON CONTRACTS, 34, note 39; McGovney, "Irrevocable Offers," 27 HARV. L. REV. 644, 654-663; Wormser, "The True Conception of Unilateral Contracts," 26 YALE L. J. 136; Corbin, “Offer and Acceptance and Some of the Resulting Legal Relations," 26 YALE L. J. 169, 195-196. The case of an attempted revocation of an offer to an indefinite number of persons by advertisement in the newspapers is, perhaps, one which must be handled, as Sir Frederick Pollock says it was in Shuey v. United States, 92 U. S. 73 (1875) by judicial legislation (WILLISTON'S WALD'S POLLOCK ON CONTRACTS, 23), but the case of an offer to a known person or to known persons might well be disposed of, without violation of principle, by permitting the offer of unilateral contract to be revoked prior to substantially complete performance of the acts called for and yet preventing real hardship to the offeree, in cases where an adequate quasicontractual obligation cannot be found, by enforcing an implied-in-fact contract to compensate the offeree for what he has done for the offeror at the latter's request.