State Ex Rel. Mitchell v. United States Fidelity & Guaranty Co.

Two questions are presented upon this appeal. One is whether recovery may be awarded for the partial performance only of a contract where the other party thereto has received and retains benefits by reason of snch partial performance. The other is whether in an action wherein plaintiff seeks such a recovery counterclaims may be interposed by defendant based upon damages alleged to have been sustained in part by reason of plaintiff’s failure to complete the contract and in part by the allegedly negligent manner in which plaintiff in certain respects attempted the performance thereof.

The first…