PARTS, &c. IV. ITS incurred at the defendant's request;] and that being so indebted, the defendant, in consideration thereof, then promised the plaintiff to pay him the said sum 5thly. The of money on request." cause of action. 1. In as The quantum meruit count, instead of stating that the defendant was indebted to the plaintiff in a certain sum of money for work, &c., as in the indebitatus count, was in this form, " and whereas also, afterwards, to wit, on, &c. in consideration that the plaintiff, at the request of the defendant, had done work, &c. (stating the subject matter of the debt according to the fact, and usually as in the indebitatus count), he the defendant promised the plaintiff to pay him so *much money as he therefore reasonably deserved to have ;" and the count [*375] then averred," that the plaintiff therefore deserved to have a named sum, whereof the defendant afterwards, to wit, on, &c. aforesaid, had notice." sumpsit. Common counts. Quantum meruit count. Quantum valebant count. Account stated. The Com before The quantum valebant count was in general confined to the case of a claim for goods sold, and instead of the quantum meruit, stated that "the defendant promised to pay so much as the goods were reasonably worth;" and concluded with a corresponding averment that they were reasonably worth a named sum, and that the defendant had notice thereof. In other respects this count was similar to the quantum meruit. Although Sir William Blackstone mentions the quantum meruit and valebant as useful, and as then to have been supposed necessary variations to avoid the risk of the plaintiff's not being able to prove an agreement to pay a fixed price; the opinion of the profession has long been that such quantum meruit and quantum valebant counts are wholly unnecessary, and that under an indebitatus count in assumpsit or debt the plaintiff' may recover, although there be no evidence of a fixed price, and Reg. Gen. Trin. T. 1 W. 4, prescribing forms of indebitatus counts may be considered as virtually abolishing the quantum meruit and valebant counts. The account stated still retains its original utility. It alleges, that "the defendant on a named day, month, and year, accounted with the plaintiff of and concerning divers sums of money before then due from the defendant to the plaintiff, and then in arrear and unpaid, and that upon such accounting, the defendant was then found to be in arrear to the plaintiff in a named sum, and that being so found in arrear and indebted, the defendant, in consideration thereof, then promised the plaintiff to pay him the same on request." Upon these counts the Common Breach was, " Yet the said defendant, not mon Breach regarding his said promises and undertakings, but contriving and craftily and Reg. Gen. subtly intending to deceive and defraud the said plaintiff in that respect (y), Trin. T. 1 hath not (although often requested so to do) (≈) as yet paid to the said plain W. 4. tiff the same sums of money or any part thereof, but hath wholly neglected and refused, and still neglects and refuses so to do, to the plaintiff's damage of £(a named sum), and thereupon he brings his suit, &c." This breach necessarily varied in actions by and against surviving partners, husband and wife, executors and assignees, &c.(a). The form prescribed by Reg. Gen. Trin. T. 1 W. 4, is even still more concise (a). (y) Ante, 369, 370. (a) Sce ante, 365; post, 392; and post, (z) The printed forms generally contain vol. ii. a special request, but this is unnecessary, 1 Wils. 33; ante, 364. IV. ITS PARTS, &c. 5thly. The cause of Common Of the ap of these counts in Formerly these general counts for work, goods sold, &c. were not in use; and Lord Holt is stated to have said that he was a bold man who first ventured on them; but they are now much more frequent than the special counts, when the action is for a Common debt or for any money demand (b). It is not sufficient to state merely that the defendant "was indebted to the plaintiff in a action. certain sum, and promised payment ;" it must be shown what was the cause 1. In asor subject-matter or nature of the debt; as that it was for work done, or for sumpsit. goods sold, &c. (c). But it is not necessary to state the particular descrip- counts. tion of the work done (686), or goods sold, &c.; for the only reason why the plaintiff is bound to show in what respect the defendant is indebted, *is, that it plication may appear to the Court that it is not a debt of record or specialty (687), recoverable in another form of action, but only on simple contract; and any general. general words by which that may appear are sufficient (d). Unnecessary [376] statements, such as the local situation of the premises, in a count for use and occupation, should be avoided, as a variance might be fatal (e). Several distinct debts due in respect of different contracts not under seal, of the same or a different nature, as demands for work, and debts for goods, monies lent, &c. might always be included in one count of this description; and the plaintiff would succeed pro tanto though he only prove one of such contracts (ƒ) (688). If one of the subject-matters be improperly stated, the defendant should not demur to the whole, but only to the insufficient part of the count or declaration (g). Under an indebitatus count the plaintiff may recover what may be due to him, although no specific price or sum was agreed upon; and therefore it has been observed that the quantum meruit and quantum valebant counts are in no case necessary, and should in many cases be omitted, to prevent unnecessary prolixity and expense (h). It was laid down, that under a quantum meruit count the plaintiff could not recover, if the goods were sold, or the work done, &c. at a certain price (i). In each of these counts, upon an executed consideration, except that for money had and received, and the account stated, it is necessary to allege that the consideration of the debt was performed at the defendant's request, though such request might in some cases be implied in evidence (k); and it must also be stated that the defendant promised to pay a specific sum, or so much as the plaintiff reasonably deserved, averring in the latter case what sum is due (1). As the common counts are so useful in practice, it may be advisable concisely to consider the particular applicability of each. (b) 2 Stra. 933; 1 Saund. 269, n. 2; 2 Id. 122, n. 2; 350, n. 2; 374, n. 1; Fitzg. 302; Com. Dig. Assumpsit, H. 3; 13 East, 107. (c) 2 Saund. 350, n. 2; Cro. Jac. 245. (d) Skin. 217, 218; 2 Saund. 350, note 2, 373; 2 Lev. 153; Carth. 276; 2 Wils. 20; 1 Mod. 8; 1 Sid. 425; Bac. Ab. Assumpsit, F.; Ld. Raym. 1429; By special custom even the cause of the debt need not be shown. 2 Stra. 720; 1 Saund. 68, note 2. (e) See ante, 307. (f) 2 Saund. 122, note 2; see the form, (g) 2 Cromp. & Jerv. 418; 2 Tyr. 468. (i) 1 Stra. 648; but see 6 Taunt. 108. (1) 2 B. & P. 321. (686) Lewis, Ex., v. Culbertson, Adm. 11 Serg. & Rawle, 49. Vide Edwards v. Nicholls, 3 Day's Rep. 16. (687) 11 Serg. & Rawle, 49. (688) Acc. Bailey and Bogert v. Freeman, 4 Johns. Rep. 280. But a demand for certain lands sold and conveyed, is too general, and cannot be joined with the common counts, Nelson v. Swan, 13 Johns. Rep. 483. IV. ITS The common counts relating to Real Property most frequently occur where PARTS, &c. the action is brought, either for the recovery of a sum agreed to be paid as 5thly. The the price or value of an estate sold by the plaintiff to the defendant, or to recover the rent of premises holden by the defendant as the plaintiff's tenant. cause of action. 1. In as sumpsit. Common counts as to Real *If in the deed by which a freehold or leasehold estate is conveyed, there be an express or even implied covenant by the defendant to pay the price, of course assumpsit cannot be maintained (m). It has been doubted whether the indebitatus counts can be sustained for the price, although the estate has been Property in conveyed, and there be no covenant to pay the money (n). But these counts particular, are sometimes adopted in practice (o), and may probably be sustained (p); [377] although it may be judicious to insert a special count (689). If the objection to the common counts be founded on the notion that the demand savors of the realty (q), it might be better to declare in debt. The common count for use and occupation is of very frequent occurrence (r). It is founded on the statute (s), which enacts, "that it shall be lawful for a landlord, where the agreement is not by deed, to recover a reasonable satisfaction for the tenements held or occupied by the defendant, in an action on the case for the use and occupation of the premises ;" and if in evidence on the trial, any parol demise or agreement, not by deed, whereon a certain rent is reserved, shall appear, the plaintiff shall not be nonsuited, but may use the same as an evidence of the quantum of the damages to be recovered (690). The object of the statute was the removal of the difficulties experienced by landlords in declaring at common law for rent; the statute remedies this evil but does not entitle a landlord to recover rent in cases in which he had not at common law a right to recover it. It affects only the mode of declaring (t). The effect of the statute is to render the common counts sufficient, although there be a formal written agreement in all cases in which there is not a de[*378] mise by a lease or instrument *under seal. In the latter event covenant or debt is the remedy (u). These counts may be supported, if there has been a legal tenancy, although the defendant, to whom the premises were let, did not himself occupy them, but let them to another (a); or allowed his servants only to in (m) Ante, 117. (n) Per Lord Ellenborough, James v. Shore, Sittings at Westminster after Michaelmas Term, 1816; Stirling, attorney for the plaintiff; and see 3 Tyr. 963. 272. Parol agreement to take on terms of (0) See the forms, post, vol. ii. (q) See ante, 264. (r) See in general Chit. jun. on Contracts, 106; 5 B. & C. 333; 8 D. & R. 67, S. C.; post, vol. ii. As to the stamp, if there be a written agreemeut, 3 Esp. 213; 1 New Rep. (s) 11 Geo. 2, c. 19. (t) 5 B. & C. 332, 333; 8 D. & R. 67, S. C. (u) Ante, 264. (x) 8 T. R. 327. (689) But see 11 Serg. & Rawle, 50, that the declaration ought to lay the contract strictly. And see Weigley's Adm. v. Weir, 7 Serg. & Rawle, 311, and Codman v. Jenkins, 14 Mass. Rep. 93. } (690) In Egler v. Marsden, 5 Taunt. 25, which was an action of debt for use and occupa tion, GIBBS, J., says: "This is not an action on the statute 11 G. 2. c. 19. The meaning of that act was, you may bring an action upon the case, and although it shall appear that there was a contract under a certain rent reserved, yet you shall recover a reasonable compensation for the use of that which you go for." IV. ITS PARTS, &c. cause of action. 1. In as habit them (y); or although the premises were destroyed by fire, or otherwise rendered uninhabitable (z) before the rent accrued due. It suffices if there were a constructive legal possession, provided there were a holding or tenan- 5thly. The cy (a). And it lies against a tenant who holds over after the expiration of a demise by deed, to recover rent accruing due after the end of the term (b). But a husband cannot be sued alone for use and occupation of premises by sumpsit. his wife dum sola; as it cannot be said that she occupied at his request (c). Common The mode of describing the premises is pointed out in the second volume (d). counts. The indebitatus count may also be brought to recover a remuneration for the use and occupation or enjoyment of a fishery, a water-course (e), or a pew, and for tolls, &c. (f) or other incorporeal hereditament; although in strictness, as being incorporeal matters, there could not have been a sufficient demise or contract otherwise than by instrument under seal (g). So indebitatus assumpsit lies for the antecedent use and occupation of a messuage, together with incorporeal hereditaments, or of the latter alone, although a special count, setting out a contract for letting the same, would be void, because not under seal, and therefore invalid at common law (g). The common indebitatus count, to recover the price or value of goods sold Goods by the plaintiff to the defendant, states, that the defendant was indebted to the sold. plaintiff for goods, chattels, and effects, by the plaintiff sold and delivered to the defendant" at his request." It seems that the price or value of fixtures and perhaps crops sold, may be recovered under the common count, provided there be inserted therein, besides the word goods, the terms fixtures, crops, chattels, effects, &c. (h). It is, however, usual to frame the count differently where the price of fixtures (i) or crops (k)(691) is sought to be recovered. If cattle were *sold, that word [*379 ] should be introduced into the count, though the word chattels, which includes animate as well as inanimate things, would suffice. Where an agreement between an out-going and incoming tenant was that the latter should buy the hay, &c. of the former upon the farm, allowing the expense of repairing the fences, &c. and that the value of the hay, &c. and of the repairs, should be ascertained by third persons, it was held that the balance settled to be due, that is, the value of the goods, allowing for the repairs, was recoverable upon the count for goods sold (1). Upon one count for goods sold in the common form, the prices of different goods sold at different times may be recovered (m). cause of action. 1. In as counts. IV. ITS In order to maintain a count for goods sold and delivered, it is essential that PARTS, &c. the goods should have been delivered to the defendant or his agent, or to a 5thly. The third person, not credited by the plaintiff, at the request of the defendant, or that something equivalent to a delivery should have occurred (n), and if not delivered, but still on premises of vendor, though packed in boxes furnished by purchaser, plaintiff would be nonsuited, for he should have declared for Common goods bargained and sold or specially (o). Where a contract was made between A. and B., whereby A., having a quantity of apples, agreed to sell his cider to B. at a certain price per hogshead, to be delivered at T. at a future time, the cider to be manufactured by B. on A.'s premises; and A. delivered a quantity of the apples to B.'s servant; but before the time for delivery of the cider it was seised and sold by the excise, in consequence of B.'s default ; it was held, that as the delivery at T. thus became impossible, B. was liable on a count for goods sold and delivered (p). This count may also, it seems, be maintained where goods have been delivered on the terms of sale or return, and have not been returned within the time agreed upon, or within a reasonable time (q). But where A. sold beer to B. in casks, giving him notice that unless he returned the casks in a fortnight, he would be considered as the purchaser, it was held by Lord Ellenborough that B. was not liable for the value of the casks retained by him, as for goods sold and delivered, but only upon a special count (r). Where a defendant by fraud induced the plaintiff to sell goods to a third person, who was insolvent, and then got the goods into his own possession, it was held that he was liable upon the common count (s). But not if by fraud a sale on credit was obtained, and which credit has not expired (t). [*380] *The common counts for goods sold cannot be maintained, and it is necessary to declare specially in the following cases. 1st. If the sale were not to the defendant, but to a third person, and the defendant were only liable collaterally, that is, in case the vendee did not pay (u). And in an action against a broker acting under a del credere commission, to recover the price of goods sold by the defendant for the plaintiff, the declaration should, it seems, be special (x). 2dly. In general, these counts cannot be supported where the plaintiff was to be paid for his goods, not in money, but by the delivery of other goods (y). But if the contract by for payment partly in money and partly in goods, and the latter are delivered, and the plaintiff' seek to recover the money only, he may declare on the common count for goods sold (z). And where the defendant agreed to sell to the plaintiff three unfinished houses, and to finish them within a certain time, and the plaintiff agreed to pay for them by the de (t) Ferguson v. Carrington, 9 B. & Cres. 59; Strutt v. Smith, 1 Cr. M. & R. 312. (u) 1 Saund. 211 a, b; 2 Campb. 215. (x) 7 Taunt. 558; Moore, 279, S. C. See the special count and note, post, vol. ii. An indebitatus count by the broker for his del credere commission is good, at least after verdict, 8 Taunt. 371; 2 Moore, 420, S. C. (y) 1 Hen. Bla. 287; Holt, C. N. P. 179; 3 Campb. 352. (z) 3 B. & C. 420; 5 D. & R. 277, S. C. |