## Facts

- Kelley agreed to excavate land and construct a concrete sidewalk and curb in front of Hance’s property for $420, promising to start within a week and finish before cold weather.
- Kelley delayed commencement until December 4, 1926, then performed only limited excavation and constructed no sidewalk or curb.
- Kelley abandoned the work without a found justification.
- On March 2, 1927, Hance cancelled the contract due to Kelley’s failure to perform; the trial court found the cancellation justified.
- The reasonable value of the excavation performed was found to be about $158.60; the trial court awarded Kelley $133.68 on a benefits/quantum meruit theory.

## Issues

1. Whether a contractor who unjustifiably abandons a land-improvement contract before substantial performance may recover in quantum meruit for partial work where the owner did not accept the partial performance under circumstances implying a promise to pay.
2. Whether a landowner’s retention of land containing unreturnable improvements implies acceptance sufficient to support restitution to a breaching contractor.

## Decision

- The Supreme Court of Errors of Connecticut reversed the judgment for Kelley.
- The court held Kelley could not recover the reasonable value of the partial excavation because he abandoned without justification and did not substantially perform.
- The court directed judgment to be entered for Hance.

## Legal Principles

- A contractor who abandons a contract without justification and without substantial performance generally cannot recover for partial performance in quantum meruit unless the other party accepted the benefits under circumstances implying a promise to pay.
- For work performed on land, acceptance cannot be implied merely from the owner’s continued possession because the benefit cannot practically be returned.
- An implied promise to pay for partial land improvements requires affirmative acceptance of the partial performance as such, not mere retention of an unreturnable benefit after breach.

## Conclusion

A breaching contractor who unjustifiably abandons a real-property improvement contract before substantial performance is not entitled to restitution for partial work where the owner did not accept the partial performance in a manner implying an obligation to pay, and the owner’s mere retention of the land does not constitute acceptance.


Kelley v. Hance, 108 Conn. 186, 142 A. 683 (1928)