delivering the opinion of the Court:
This motion raises the following questions:
(1) Where a husband and wife own property as tenants by the entirety, can the wife join with her husband and make a valid contract for the repair of said property?
(2) What is the proper measure of damages where work has been done and materials furnished in part performance of a special contract, but where said contract has not been fully performed; (a) because of the default of the plaintiff; (b) because of the default of the defendant?
It is admitted that a conveyance of real estate to a husband and wife creates an estate by the entirety, and that such estates have not been abolished in this State by the Married Woman’s Act. Kunz v. Kurtz, 8 Del. Ch. 404, 68 Atl. 450, and Hurd v. Hughes, 12 Del. Ch. 188, 109 Atl. 418. Whether such estates have been in any way affected by such acts is, however, a different question. An estate by the entirety is a peculiar estate, both husband and wife being seized and, therefore, being the owners not merely of equal interests in, but of the whole estate during their joint lives. Because of this peculiarity such estates can neither be partitioned, nor can they, or the interest of either owner therein be sold, except by the joint act of both husband and wife; nor can a judgment against one tenant become a lien on the entirety property or on any interest therein, during the joint lives of the husband and wife. And on the death of one tenant the surviving husband or *213wife continues to own the whole estate and acquires no new interest by the death of the other.
Can such a property right be construed as the separate property or estate of the wife, under Chapter 197, vol. 30, Delaware Laws, approved April 21, A. D. 1919? The defendants contend that it cannot, and in support of this contention cite Speier v. Opfer, 73 Mich. 35, 40 N. W. 909, 2 L. R. A. 345, 16 Am. St. Rep. 556. With reference to the Married Women’s Acts, the Court of Chancery, in Hurd v. Hughes, supra, in which a tenancy by the entirety was involved, said:
“These statutes in Delaware, as elsewhere, free her estate of her husband’s possession, control or disposition, and from liability for his debts.”
The conclusion reached in the above case was largely based on the decision of the Court of Errors and Appeals in Evans v. Lobdale, 6 Houst. 212, 22 Am. St. Rep. 358; though that case did not involve a tenancy by the entirety.
Kohn v. Collison, 1 Marv. 109, 27 Atl. 834, is to the same effect as Evans v. Lobdale; and Kunz v. Kurtz, supra, expresses the same thought when, adopting the language of Judge Strong, in Dover v. Dover, 56 Pa. 106, it held, in substance, that the married women’s acts merely regulated the enjoyment of property vested in a married woman and did not affect the creation of or vesting of any estate in her.
Hurd v. Hughes was argued March 12, 1920, and, therefore, after the enactment of Chapter 197, vol. 30, though no special reference was made to it in that case.
But it cannot be contended that this act was intended to be less liberal toward married women than the statutes construed in the above cases.
Chapter 197, vol. 30, provides:
“That the property of a married woman, * * * shall be * * * her sole and separate property."
While it is true that statutes in derogation of the common law are construed strictly and the rights conferred are usually limited to such rights and classes of property as are.expressly *214mentioned in the statute (Kohn v. Collison, supra; 21 Cyc. 1366), that a married woman’s interest in an estate by the entirety is “property,” seems too clear to admit of argument. Hurd v. Hughes, supra. That being true, it is her sole and separate property within the contemplation and meaning of the statute above referred to. See, also, Cox v. R. R., 123 Mo. App. 356, 100 S. W. 1096; Davis v. Clark, 26 Ind. Appeals 424, 89 Am. Dec. 471; Wilson v. Logue, 131 Ind. 191, 30 N. E. 1079, 31 Am. St. Rep. 426.
The fact that the statute in question also provides that a married woman “may sell, convey, assign, transfer, devise, bequeath, encumber, or otherwise dispose of” her separate property cannot, because of the peculiar nature of a married woman’s interest in an estate by the entirety, operate to exclude it from being included within the broad meaning of the word “property,” as used in such statute.
The rights of any owner of property, with respect thereto, may be-limited by any legal and valid restrictions in the grant or arising from the nature of the estate created by such grant, and a tenancy by the entirety is no exception to this rule. But the statute above referred to also says, “and she may contract jointly (including with her husband) or separately, sue and be sued, and exercise all other rights and powers, * * which a feme sole may do under the laws of this state.”
If this clause, giving a married woman a right to make contracts is confined to her separate property, as is contended by the defendants, Frances T. Sayers," one of the defendants, by reason of her interest in the entirety property, therefore, had the right to enter into a contract for its alteration and repair.
But the right of Frances T. Sayers, to make this contract, can be supported on another ground.
While the Married Woman’s Act (Section 3052, Rev. Code 1915) in force prior to the enactment of Chapter 197, vol. 30, Del. Laws, expressly confines her rights to make contracts relative to her own property (Kirkley v. Lacey, 7 Houst. 213, 30 Atl. 994; Kohn v. Collison, supra), a fair and reasonable construction of the present statute shows no such limitation or restriction.
*215It is true, as I have already stated, that for certain purposes the married women’s acts are in derogation of the common law and are, therefore, construed strictly, yet in order to secure and enforce thS rights actually given by such acts and so that their intent and purpose may be carried out, they are classed as remedial statutes and are construed liberally. Kohn v. Collison, supra; 21 Cyc. 1366. Viewing this statute in the light of the limitations and restrictions in the old law, and apparently sought to be remedied by the broad language of the present act, a fair construction of it compels the conclusion that the Legislature intended to give a married woman the right to make contracts, regardless of whether they had any reference to her own property.
This Court, therefore, committed no error in charging the jury that Frances T. Sayers had the right to contract with respect to property owned by herself and her husband, as tenants by the entirety.
Ordinarily, where there is a special contract between the parties, there can be no recovery on the common counts for anything done pursuant to such contract; but though work and labor may have been done and materials may have been furnished in part performance of a contract, that there maybe a recovery therefor under the common counts under the following circumstances cannot be questioned: first, where the special contract has been fully performed by the plaintiff and nothing remains to be done but the payment by the defendant of the price in money; second, where the special contract “though partly performed (by the plaintiff) has been abandoned by mutual consent of the parties, or has been rescinded or defeated by some act on the part of the defendant,” the plaintiff can recover “remuneration for what he had done”; third, where “what was done by the plaintiff” under the special contract was “not in the stipulated time and manner and yet was beneficial to the defendant and has been accepted and enjoyed by him” he may recover “the reasonable value of the benefit which upon the whole the defendant has derived from what he has done.” Hurlock v. Murphy, 2 Houst. 550, 557; McDaniel v. Webster, 2 Houst. 305, 311; Johnson Forge Co. v. Leonard, *2163 Penn. 342, 51 Atl. 305, 94 Am. St. Rep. 86, 57 L. R. A. 225; Massey v. Greenabaum Bros., 5 Penn. 20, 58 Atl. 804.
Recovery on the common counts is permitted in the “first” class because the law would have implied a contract under such circumstances even though there had been no express contract. Recovery in the “second” and “third” classes is also clearly based on the law of implied contracts, and is not in effect a suit on the special contract as is argued by the defendants. In the “second” class, in order for the common counts to be applicable the special.contract must have been abandoned by mutual consent or rescinded, repudiated or defeated by some act on the part of the defendant. It is not enough to show that the plaintiff has been hindered or prevented by the defendant from performing the contract on his part; it must also appear from the circumstances that the plaintiff was at liberty to, and did treat such contract as at an end. Hurlock v. Murphy, McDaniel v. Webster and Johnson Forge Co. v. Leonard, supra; Woolley on Del. Prac., vol. 1, § 1454; Woodward on Quasi Contracts, §§ 260 and 263. If any additional support for this proposition is needed, it is also clearly shown by the following cases where services were rendered under contracts which were void because of the statute of frauds, or because of having been made on Sunday, yet the plaintiffs on being compelled to sue because of the default of the defendants, were permitted to recover the reasonable value of such services under the common counts. McGartland v. Steward, 2 Houst. 277; Watson v. Watson, 1 Houst. 209; Spahn v. Willman, 1 Penn. 125, 39 Atl. 787. See, also, L. R. A. 1916D, 895, etc.
In the “third” class, while the contract need not be rescinded or abandoned, yet the plaintiff cannot recover thereon because he has deviated from its terms and, therefore, cannot show performance. Hurlock v. Murphy, supra; Woolley’s Del. Prac., supra.
If the recovery in such cases is not on the special contract, what if any effect does the question of whether the failure to perform such contract was due to the act of the plaintiff, or to the act of the defendants have on the measure of the plaintiff’s *217recovery? The common counts in assumpsit and the law of implied contracts to which they apply are founded on equitable principles which have gradually become established as a part of the common law. History of Assumpsit, vol. 2, Harvard Law Rev., p. 66; Woodward on Quasi Contracts, §§ 3, 6-9 and 162. Recovery on such contracts is based upon the theory that the defendant should not be permitted to receive benefits, or unjustly enrich himself, at the, expense of the plaintiff. Woodward on Quasi Contracts, § 8.,,' Where the plaintiff is in default in the full performance of a special contract,' his position is not the same as one who does work or furnishes labor and materials upon request, and who, therefore, has the right to recover the reasonable and usual value of such services or materials, regardless of their benefit to the defendant. Where, however, the plaintiff, through no fault of the defendant has failed to fully perform his contract, yet his labor and materials have been accepted by the defendant, and are of some benefit to him, the reasonable value of such benefit to the defendant, less, of course, the damage resulting to the defendant from the plaintiff’s breach is the proper measure of the amount that the plaintiff can recover. Williston on Contracts, §§ 1480, 1482, 1485; Woodward on Quasi Contracts, § 178; Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455;. Viles v. Kennebec Lumber Co., 118 Me. 148, 106 Atl. 431. But this rule is subject to the additional limitations hereinafter stated; and subject to such limitations the burden is on the plaintiff to show how much the defendant has been benefited by his labor and materials. Williston on Contracts, § 1482; Gillis v. Cobe, supra.
This rule of benefit to the defendant, under such circumstances, has been adopted in this state. Hurlock v. Murphy, supra; Merritt v. Layton, 1 Boyce 213, 75 Atl. 795; Woolley’s Del. Prac., § 1454.
In fact, the benefit to the defendant rule was also applied in England-Kelch Co. v. Evening Journal Co., 5 Boyce 179, 91 Atl. 448, where the plaintiff sought to recover on the common counts for acts performed under a special contract, though such contract had been rescinded by mutual consent; that question, however, *218is not involved here. A defendant not in default has the right to expect to get what he bargained for, and to pay therefor not nore than the contract price. Though the suit is not on the contract, a defaulting plaintiff certainly should not be permitted to deprive the defendant of that right. That is what the Court meant in Hurlock v. Murphy, supra, when it said in reference to the plaintiff’s default, in complying with the special contract so that he could not recover thereon “yet he may recover upon the common counts for the reasonable value of the benefit which upon the whole the defendant has derived from what he has done.” See, also, Taylor v. Trustees of Poor, Penn. 555, 43 Atl. 613.
The contract price should, therefore, be the limit of the total amount that the defendant should be compelled to pay for full performance when the plaintiff is in default; and what the plaintiff recovers should not be in excess of such a portion of the agreed price as the reasonable value of what he performed bears to the whole work that was to have been done by him, less, as above stated, the damages resulting to the defendant from the plaintiff’s breach. Woodward on Quasi Contracts, § 178. The language of Williston on Contracts, § 1485, with respect to this question is as follows:
“The plaintiff should then be limited to such a fraction of the contract price as what he performed bears to the whole. He is not necessarily entitled to as much as this, if the defendant has not received so much benefit, but he should never recover more.”
See, also, Gillis v. Cobe, supra; Viles v. Kennebec Lumber Co., supra; Danforth v. Freeman, 69 N. H. 466, 43 Atl. 621; McKinney v. Springer, 3 Ind. 59, 54 Am. Dec. 470; Connolly v. Sullivan, 173 Mass. 1, 53 N. E. 143; Burke v. Coyne, 188 Mass. 401, 74 N. E. 942.
Where, however, the defendant is in default, and his act prevented the performance of the contract, the rule is different. Under such circumstances, the plaintiff should recover the reasonable value of his services and the contract price forms no conclusive limit to the amount that he can recover. This is the natural result of the theory on which the law of implied contracts is based. The author of Williston on Contracts, § 1485, in this connection says:
*219"When the plaintiff’s failure to fulfill completely his obligations under the contract, is due to the defendant’s default, there is no reason for imposing any limitation on the amount which he may recover on a quantum meruit or quantum valebant for what he has done other than that set by the principles of fair value.” See, also, Connolly v. Sullivan, 173 Mass. 1, 53 N. E. 143, supra; Rogers v. Becker-Brainard Milling Co., 211 Mass. 559, 98 N. E. 592; Clark v. Manchester, 51 N. H. 595; Woodward on Quasi Contracts, § 268.
This rute has also been followed in this state. In McDaniel v. Webster, supra, which involved a building contract abandoned and rescinded by the plaintiff through the fault of the defendant, the plaintiff sued on the common counts, for work and materials furnished under the special contract, and Judge Gilpin, in charging the jury, said:
“If there was originally a special agreement between the parties in regard to the matter, under which it was commenced and prosecuted, as far as it was performed by the plaintiff, but which special contract was afterwards rescinded, or abandoned by reason of the misconduct of the defendant, * * * the plaintiff would then, in either case, be entitled to recover on the common counts for his work and the materials furnished, as far as he had proceeded with it, without any reference to the special agreement, the same as if none had ever been entered into by him; and in either of those events, * * * his book of original entries would be admissible and competent evidence * * * to prove the work done and materials furnished, and the value of them,” etc.
Watson v. Watson and McGartland v. Steward, supra, are to the same effect; and considering the whole case the same thing was evidently meant by the language quoted from Hurlock v. Murphy on a preceding page of this opinion where the Court said, with reference to a defendant in default, that the plaintiff could recover ‘ ‘remuneration for what he had done. ” It is true that some courts have held that the contract price governs the amount that can be recovered, no matter who is in default. Kehoe v. Rutherford, 56 N. J. Law 23, 27 Atl. 912. For other cases see Williston on Contracts, § 1485, note, and Woodward on Quasi Contracts, § 268.
But such rule does not seem to represent the weight of authority or the better rule. Williston on Contracts and Woodward on Quasi Contracts, supra. It is also opposed to the Delaware cases above cited.
While the distinction as to the measure of damages between a defaulting plaintiff or defendant has not always been clearly *220drawn by this Court, Hawthorne v. Murray, 3 Boyce 349, 84 Atl. 5; Voightmann v. Wilmington Trust Building Corporation, 7 Penn. 265, 78 Atl. 920; Elliott v. Wilson, 2 Boyce 445, 80 Atl. 35; there has been no apparent intent to change the old established rules. No prayers were apparently presented in any of the cases above referred to, and Elliott v. Wilson cites with approval the early cases of Hurlock v. Murphy and McGartland v. Steward, supra, both of which, as has already been stated, are in accord with the principles herein stated. The instructions given in the second reason assigned for granting a new trial were in accordance with the conclusions reached in this opinion, and there was, therefore, no error in such instructions.
The instructions given in the third reason assigned for granting a new trial, standing alone, do not clearly instruct the jury that the measure of recovery when the plaintiff is in default is the reasonable value or benefit to the defendants of plaintiff’s part performance; but, when read in connection with the fourth reason assigned, as well as with the following preceding paragraphs of the charge, such instructions fairly present the law to the jury:
“But where it appears that what was done by the plaintiff was done under a special contract, but not in the stipulated time and manner, and yet was beneficial to the defendants and has been accepted by them, although he cannot recover upon the contract from which he has departed, yet he may recover on the common counts for the reasonable value of the ‘benefit’ which, upon the whole, the defendants have derived from what he has done.”
The instructions given in the fourth reason assigned'for granting a new trial, measured by the principles above stated, were, however, erroneous. They failed to state the proper measure of the plaintiff’s right to recover if he was in default, or that there was any limit to such right other than the benefits received and accepted by the defendants. Though they believed that the work was done under the contract relied on by the defendants, the jury were, therefore, justified in believing that a verdict for the plaintiff might be in excess of $1300.00, less the undisputed deductions referred to, if the benefits to the defendants exceeded that amount. The instructions given and objected to under this reason followed Merritt v. Layton, supra, in which the defendant contended that *221the plaintiff was in default. The instruction in that case that the jury “might consider the contract price in fixing the amount of the verdict, if the plaintiff recovered,” was undoubtedly correct so far as it went, and there was nothing to show that the Court was asked to go any further. That case, therefore, did not justify a refusal to instruct the jury in accordance with the principles herein stated, when there was a prayer to that effect. There was some contention at the argument for a new trial that the jury should have been charged that a plaintiff willfully refusing to comply with his contract, and, therefore, willfully in default, could not recover. Even if the facts of this case justify such a construction, which may be doubted, there was no prayer to that effect at the trial, and I, therefore, have refrained from discussing or passing on that point.
Because of the fourth reason assigned by the defendants, the verdict of the jury is set aside, and a new trial is granted.
Note.- — -Where the plaintiff had fully performed under a contract for the sale of property and nothing remained to be done but the payment in money of the amount due, this Court in Pusey & Jones Co. v. Dodge, 3 Penn. 63, 49 Atl. 248, in charging the jury stated that the agreed price was the proper measure of the plaintiff’s recovery. See, however, Woodward on Quasi Contracts, § 262, p. 414, etc. When there is no special contract and labor and materials are furnished to the defendant, the plaintiff’s book account is admissible, though not conclusive, to show the value of the benefits received by the defendant. McDaniel v. Webster, 2 Houst. (Del.) 305.