Thompson, J.,
delivered the opinion of the court.
This action is brought to recover the sum of eight hundred dollars, had and received by the defendant to *40plaintiff’s use. The answer, after a general denial, sets up a special contract between. the plaintiff and the defendant, whereby the defendant agreed to publish a certain book for the plaintiff, to stereotype and to illustrate the same in a certain style, to print one thousand copies of the same, which one thousand were to be completed during the month of October, 1882; to publish the book through his agents, and to divide the net profits with the plaintiff. The book, embracing the stereotype plates, the plates for illustration, etc., was to be the property of the plaintiff. The contract also contained the following clause, upon the construction of which the case chiefly turns : “As security against loss in publishing said books, the said Mrs. Suddoth agrees to pay to the said W. S. Bryan, his heirs or assigns, the sum of one thousand dollars, one half — five hundred dollars — upon commencement of work upon said book, and the remainder — five hundred dollars — upon completion of the first edition of one thousand copies ; said one thousand dollars to be entered upon the books to the credit of said Mrs. Suddoth, and to be returned to her from. the sales of said book after all expenses of publishing the same shall have been paid.”
The plaintiff was to read a proof of the book, and was to have as many copies as she might need, at manufacturer’s cost.
The answer avers a performance of the contract on the defendant’s part, and a breach of it on plaintiff’s part, in failing properly to prepare the manuscript for publication. It alleges that she did not, as required by the contract, pay the last five hundred dollars, but avers that, when the time “nearly came” for this payment, she represented to the defendant that she was unable to pay more than three hundred dollars of it, and that he would have to look to the proceeds of the sales of the book “for the balance of said security.” It concludes as follows: “Whereupon, said book having already been published, this defendant seeing nothing else better *41to do, agreed with said plaintiff that said contract should be modified in this: ■ That said defandant would accept said three hundred dollars, and would look to the proceeds of sales of books for securing the performance on his part of *said contract, to which modification of said contract the said plaintiff assented. Said defendant says that he made every effort to sell said book and to make a profit out of the same, both for said plaintiff and this defendant, but was unable to do so, and that there was due to this defendant from said plaintiff at the institution of this suit, on account of the matters and things growing out of the performance of said contract, ■ the sum of $107.50, as per statement of account herewith filed, marked exhibit A.”
The reply admitted the making of the contract, averred a performance of it on the plaintiff’s part and certain breaches of it on the defendant’s part; denied that it was subsequently modified upon the payment of the three hundred dollars, as stated in the answer, or that there was due from the plaintiff to the defendant the amount stated by way of counter-claim ; averred that only a portion of the first edition of one thousand copies of the book was completed; that they were not completed according to the terms of the contract, nor until the month of May, 1883, in consequence of -which delay the plaintiff was put to great expense and loss; and avers that, “in March, 1883, defendant falsely represented to plaintiff that he had completed said one thousand copies of said book according to his contract, and by means of said false representations induced plaintiff to pay him said three hundred dollars on account, which said false representations defendant knew to be false at the time he made them, but plaintiff did not discover their falsity until afterwards.”
The ground on which the defendant asks us to reverse this judgment is, that the plaintiff has mistaken her remedy in bringing an action to recover this money ■as money had and received by the defendant to her *42use, but that her proper remedy is an action for the breach of the contract. Whether this is the proper view depends upon the construction of the Clause of the contract above quoted, in connection with the other portions of it. If this money had been paid by the plaintiff to the defendant as a part payment, or an entire payment, for the performance of the undertaking on his part, this position would be well taken. But if the defendant undertook to perform a certain undertaking for the plaintiff, and if this money was deposited with him as an indemnity against pmy loss which might accrue to him from the performance of such undertaking, and he has failed to perform the undertaking, he has no right to appropriate or retain the money; for the condition upon which it was deposited with him has failed through his own non-feasance. Our view is, that the contract does not admit of the construction that the money thus paid by the plaintiff was to be deposited with the defendant until a final performance of the contract on his part and a sale of the books, and then returned to her if there was any profit in the sale. The contract itself, the receipts offered in evidence, and the testimony of the parties all tend to show tha/t the money was to be used by the defendant in publishing the book. It was to be entered on his books to the credit of the plaintiff to be returned to her from the sales of the book after all the expenses of publishing the same should have been paid. The evidence on both sides concedes that there had been a part performance, and a very substantial part performance, on the part-of the defendant. Stereotype plates and colored plates had been made by him, from which about five hundred copies of the book had been printed and published. They have been distributed and the plaintiff has had some -benefit, at least in the form of the advertisement of her book, whatever that may be. She has received, sold, and distributed the copies which she was entitled to under the contract, and has also had that benefit, though possibly it may not have been great.
*43The present state of onr law allows actions to be-brought for money had and received where the right arises under a special contract which has fully performed. Mansur v. Botts, 80 Mo. 651" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/mansur-v-botts-8007760?utm_source=webapp" opinion_id="8007760">80 Mo. 651; Plummer v. Trost, 81 Mo. 430; Fox v. Car Co., 16 Mo. App. 127; Crump v. Rebstock, 20 Mo. App. 39; Suits v. Taylor, 20 Mo. App. 174. We presume that the right to maintain a similar action exists where money is deposited upon a contract by which the depositee undertakes to do-something and the contract on his part is wholly unperformed. But w.e do not understand that an action in. this form can be maintained where the contract has been in part performed, unless the unperformed parts are-clearly apportionable. In such a case the plaintiff must sue for a breach of the contract. The benefits, if any,, which have accrued to her from the part performance-will go in reduction of the damages which she will be-entitled to recover. She will thus recover, what the law-aims to give in most cases, compensation for the real loss which she has suffered through the failure of the-defendant to perform his contract in its entirety according to its terms.
Judge Rombauer concurring, the judgment will be-reversed and the cause remanded.