have not destroyed its plain import by borrowing the notion of a fictitious promise from the common-law theory of pleading. The practical rule may be considered as settled, that, in all instances where the right of action is based upon a duty or obligation of the adverse party which the common law denominates an implied contract, it is no longer necessary to aver a promise, but it is enough to set out the ultimate facts from which the promise would have been inferred. This being so, we must go a step farther. If it is not necessary to make such an allegation, then it is not proper to do so; although some of the judicial opinions, from a failure to apprehend the true grounds of the rule, would seem to permit, while they do not require, the averment. A promise need not be alleged because none was ever made: the facts constituting the cause of action are alone to be stated, and this promise is not one of those facts; it is simply a legal inference, contrived for a very technical purpose to meet the requirements of form in the ancient legal actions. The same reason which shows that the averment is unnecessary demonstrates that it is improper, that it violates a fundamental doctrine of the new theory; and if an harmonious system is ever to be constructed upon the basis of the reform legislation, this doctrine should be strictly enforced.

§ 541. The only recent case which is in direct conflict with these views is the one last quoted, Booth v. Farmers' and Mechanics' Bank; and it seems to demand some comment. Perhaps there cannot be found in the current reports a more striking example of exalting form above substance, and of repealing an express statutory provision by judicial construction, than is shown in this decision. The learned judge virtually admits that the text of the code is opposed to his conclusions, when he assumes that the codifiers failed to acccomplish the results which they intended. It may be remarked that he speaks of the statute as though it were entirely the work of the "codifiers," and he seems to ignore the authority of the legislature which made it a law. But are the common-law notion of an implied undertaking and the arbitrary requisite of alleging this fictitious promise such necessary conceptions, are they so involved in the essential nature of jurisprudence, that it is impossible or impracticable for the legislature to change or to abolish them? The very suggestion is its own answer. Nothing in our ancient law was more

thoroughly technical and arbitrary, more completely a mere matter of form, without even the shadow of substantial and necessary existence, than this very notion of a certain kind of legal liability being represented as arising from an implied promise, and the accompanying rule that the promise thus imagined must be averred as though it were actually made. It was shown in a former part of this section that the action of assumpsit was not even invented as an instrument by which to enforce the liability thus conceived of; but the fiction of an implied promise was itself contrived in order that the liability might be enforced by the already existing action of assumpsit, in which the allegation of a promise was the distinctive feature. The error of the opinion under review is, that it treats these matters of arbitrary form, these fictitious contrivances of the old pleaders, as though they subsisted in the nature of things, and were beyond the reach of legislative action. The difficulty, suggested by the learned judge, of being unable to distinguish between an action of tort and one of contract, in order that an election might be made between them, exists only in imagination. If we will look at the matter as it really is, throwing aside the old technicalities and fictions, there is plainly no necessity for any such distinction. If the pleader unites a cause of action upon express contract with a cause of action consisting of facts, from which under the former system a promise might have been implied, he has already made his election, all the election that is needed, and there would be no possibility of any subsequent change in or departure from this original theory of his complaint. The only practical difference which could ever arise from treating his second cause of action as though founded upon tort would be the power sometimes given of arresting the defendant either on mesne or final process, and this power would plainly have been surrendered. To sum up the foregoing criticism, the whole course of reasoning pursued by the learned judge assumes that the most technical arbitrary and fictitious distinctions between the ancient forms of action are still subsisting; it does not merely ignore the legislation which has abrogated those distinctions, but it expressly denies the ability of the legislature to accomplish such a result. This is not interpreting, it is repealing, a statute. I have dwelt upon this case longer perhaps than it intrinsically merits; but I have done so because the principles announced in it, if generally

followed, would sap the very foundations of the reformed procedure, and prevent the erection of any harmonious and symmetrical system upon the basis of its fundamental doctrines.

§ 542. (2) Whether a complaint or petition, substantially the same in its form and its allegations with the old common or general count in assumpsit, is in accordance with the fundamental principles of the new procedure, and can now be regarded as a good pleading. The courts have almost unanimously answered this question in the affirmative, and have held that such complaints or petitions sufficiently set forth a cause of action in the cases where the declarations which they imitate would have been proper under the former practice. Notwithstanding the impos

ing array of judicial authority shown by the citations in the foot-note, the courts of one or two States have refused to follow this course of decision, and have pronounced such forms of complaint or petition to be in direct conflict with the correct principles of pleading established by the codes. Although these few cases cannot be regarded as shaking, or as throwing any doubt upon, the rule so firmly established in most of the States, they may be properly cited in order that all the light possible may be thrown upon this particular question of interpretation.1

§ 543. Not only have the courts in this manner sanctioned the use of the common counts as appropriate modes of setting forth the plaintiff's cause of action; they have also held that another rule of the old practice is still retained by the codes. The rule thus declared to be in force is the following: When the plaintiff has entered into an express contract with the defendant, and has fully performed on his part, so that nothing remains unexecuted but the defendant's obligation to pay, he may if he please sue upon the defendant's implied promise to make such payment, rather than upon the express undertaking of the original contract; and to that end he may resort to a complaint or petition identical with the ancient common counts; except, as has already been shown, the averment of a promise may, and according to the better opinion should, be omitted.

with the reformed theory of pleading, and expressly refused to follow the decision made in Allen v. Patterson. The opinion is a clear and very strong argument in favor of the simple and natural modes of pleading provided by the codes.

1 Farron v. Sherwood, 17 N. Y. 227, 229; Hosly v. Black, 28 N. Y. 438; Hurst v. Litchfield, 39 N. Y. 377; Atkinson v. Collins, 9 Abb. Pr. 353; Evans v. Harris, 19 Barb. 416; Green v. Gilbert, 21 Wisc. 395, an action to recover for the part performance of an express contract, the plaintiff having been prevented by sickness from completing; Carroll v. Paul's Executors, 16 Mo. 226; Brown v. Perry, 14 Ind. 32; Kerstetter v. Raymond, 10 Ind. 199; Stout v. St. Louis T. Co., 52 Mo. 342; Friermuth v. Friermuth, 46 Cal. 42; Raymond v. Hanford, 6 N. Y. S. C. 312; Fells v. Vestvali, 2 Keyes, 152.

In Sussdorf v. Schmidt, 55 N. Y. 819, 324, the complaint alleged an agreed compensation for services; but, at the trial, the plaintiff was permitted to prove their value as upon a quantum meruit, and this was held no error, or at most an immaterial variance; but, per contra, in Davis v. Mason, 3 Oreg. 154, it was held that in an action for services, the complaint stating an express contract to pay a stipulated sum, the plaintiff cannot prove and recover their value upon a quantum meruit. In Farron v. Sherwood, which is, perhaps, the leading case, the doctrine

This doctrine is supported

was thus announced by Strong J. (p. 229) : "The case is therefore within the wellsettled rule, that when there is a special agreement, and the plaintiff has performed on his part, the law raises a duty on the part of the defendant to pay the price agreed upon, and the plaintiff may count either upon this implied assumpsit, or on the express agreement. A new cause of action, upon such performance, arises from this legal duty, in like manner as if the act done had been done upon a general request, without an express agreement. This rule is not affected by the code. The plaintiff might, as he has done, rest his action on the legal duty, and his complaint is adapted to and contains every necessary element of that cause of action." In Kerstetter v. Raymond, the Supreme Court enumerated the instances in which the general or common count was a proper means of suing upon an express contract between the parties, and declared that they were all retained by the codes. These instances are, (1) when the plaintiff has fully executed, and the time of payment is passed, the measure of damages being the stipulated price; (2) when the special contract has been altered or deviated from by common consent; (3) when the plaintiff has performed a part, and has been prevented from performing the whole by the act of the defendant, or by the act of the law; (4) when the plaintiff has not fully com