ation for work, labour, and materials. Lucas v. Godwin, 3 New Ca. 737. When there is a special contract, but additional work has been done not included in it, the value of the additional work may be recovered under the indebitatus count, although, by reason of the stipulations as to credit, &c., the value of the work done under the special contract cannot be recovered. Robson v. Godfrey, Holt, N. P. C. 236. ; S. C. 1 Stark. 275. The rule with regard to alterations made in the progress of work done under a special contract must be taken with this limitation, that the workman shall not charge for such alterations unless his employer is expressly informed, or must necessarily from the nature of the work be aware, that the alterations will increase the expense. Lovelock v. King, 1 M. & Rob. 60. Where the special contract is so entirely abandoned by consent, that it is impossible to trace it, the workman shall be permitted to charge for the whole work done by measure and value, as if no contract had ever been made; but if not wholly abandoned, the contract shall operate as far as it can be traced, and the excess only shall be paid for according to the usual rate of charging. Pepper v. Barland, Peake, 103. Where there is a written contract it must be produced, although the plaintiff seeks to recover for extras not included in it; Vincent v. Cole, M. & M. 257.; for the contract is the proper evidence to shew what are extras; Jones v. Howell, 4 Dowl. P. C. 176. In Vincent v. Cole it was even held that a distinct promise by the defendant to pay for the work would not supersede the production of the contract; but it was not held (though so stated in the marginal note) that an admission by the defendant, that it was extra the contract, was insufficient to fix him without producing the contract. Yet, as building contracts usually contain clauses as to extra works, even this admission ought not to dispense with the production, unless the defendant has also admitted that it contains no provisions for extra work. Where a man is employed to do work under a written contract, and a separate order for other work is afterwards given by parol during the continuance of the first employment, the written contract need not be produced by the plaintiff in an action for the second work. Reid v. Batte, M. & M. 413. A plaintiff may be prevented from recovering for extras by the form of pleading: thus where the defendant pleaded that the work was done under a special contract which was satisfied by payment, and the plaintiff traversed the payment and satisfaction, it was held that he could not recover for extras without a new assignment. Rogers v. Custance, 1 Q. B. 77.

In Morgan v. Birnie, 9 Bing. 672., giving the surveyor's certificate according to the contract in case of alterations, was held a condition precedent to the plaintiff's right to sue in respect of such alterations. But where the contract required the work to be done to the satisfaction of the defendant himself, his approval was held not to be a condition precedent. Dallman v. King, 4 New Ca. 106.

Where the defendant had contributed to the funds of a building society, and had been present at a meeting of the society, and party to a resolution that certain houses should be built, it was held that this made him liable to an action for work done in building those houses, without proof of his having an interest in them, or in the land. Braithwaite v. Skofield, 9 B. & C. 401. So the subscribers, who attend a committee for managing the affairs of a hospital, are personally liable to the creditors of the hospital. Burls v. Smith, 7 Bing. 705. For cases

on the personal liability of co-partners, members of clubs, shareholders, &c., see antè, p. 272–274, 278.

The defendant requested the plaintiff to take care of and show his (the defendant's) house, and promised to make him a handsome present: it was held that the plaintiff might recover a reasonable recompense for this work and labour; Jewry v. Busk, 5 Taunt. 302.; but where a person performed work for a committee under a resolution entered into by them, "that any service rendered by him should be taken into consideration, and such remuneration be made as should be deemed right," it was held that an action would not lie to recover a recompense. Taylor v. Brewer, 1 M. & S. 290. There is no implied assumpsit to pay an arbitrator for his trouble. Virany v. Warne, 4 Esp. 47. ; but see Swinford v. Burn, Gow, 8., per Dallas C. J., contrà.

A master may maintain assumpsit for the work and labour of his apprentice against a person who harbours him after his desertion; for he may waive the tort, and sue on the implied contract. Foster v.

Stewart, 3 M. & S. 191.

Under the general count for work and labour, the plaintiff may give evidence of a particular species of work and labour, e.g. as a farrier; and the medicines administered by him may be considered as materials within the count; Clark v. Mumford, 3 Camp. 37.; and see Meeke v. Oxlade, 1 N. R. 289.; but where the claim "for materials found," was omitted in the count for work and labour, it was held that the plaintiff, who sought to recover for building a house and furnishing the timber, could not recover for the latter under the count for goods sold and delivered. Cotterell v. Apsey, 6 Taunt. 322.; Heath v. Freeland, 1 M. & W. 543. The rule is thus laid down: "If you employ a man to build a house on your land, or to make a chattel with your materials, the party who does the work has no power to appropriate the produce of his labour and your materials to any other person. Having bestowed his labour at your request on your materials, he may maintain an action against you for work and labour. But if you employ another to work up his own materials in making a chattel, then he may appropriate the produce of that labour and materials to any other person. No right to maintain any action vests in him during the progress of the work; but when the chattel has assumed the character bargained for, and the employer accepted it, the party employed may maintain an action for goods sold and delivered, or (if the employer refuses it) a special action on the case for such refusal; but he cannot maintain an action for work and labour; because the labour was bestowed on his own materials, and for himself, and not for the person who employed him." Atkinson v. Bell, 8 B. & C. 283. ; see also antè, p. 270, 271.

Contract.-Repairs of Ships.] Registered ownership, that is, proof of the register (antè, p. 85.), and that such register has been made with the assent of the parties therein named, is prima facie evidence of the liability of those parties for the repairs of the ship; Cox v. Reid, R. & M. 199.; but such evidence may be rebutted by proof of the beneficial interest having been parted with, and of the legal owner having ceased to interfere with the management of the ship. Jennings v. Griffiths, R. & M. 42. Young v. Brander, 8 East, 10. The true question in cases of this description is, "Upon whose credit was the work done?" Per

Abbott C. J., Jennings v. Griffiths, R. & M. 43. A person who takes a share in a ship under a void conveyance is not liable for articles furnished to the ship, unless credit be given to him individually, or he holds himself out as owner. Harrington v. Fry, 2 Bing. 179. An undertaking by the defendant's attorney" to appear for Messrs. T. and M. joint owners of the sloop A." is evidence against the defendants of the joint ownership. Marshall v. Cliff, 4 Camp. 133. A part owner of a ship is not necessarily a partner; and if, as ship's husband, he has fitted her out, he may sue the other part owners separately for their share of the expense. Helme v. Smith, 7 Bing. 709.

Whether a mortgagee of a ship, before possession, was liable to repairs, was formerly much doubted; Briggs v. Wilkinson, 7 B. & C. 30.; but now, when a transfer is made only by way of mortgage, or of assignment to trustees by way of sale, on a statement being made in the book of registry and in the indorsement on the certificate of registry to that effect, the person to whom the transfer is made, or any other claiming under him, is not to be deemed the owner, nor is the person making such transfer to be deemed to have ceased to be an owner, except so far as may be necessary for the purpose of rendering the ship transferred available by sale or otherwise for the payment of the debts secured. 4 G. 4. c. 41. s. 43. ; and 3 & 4 W. 4. c. 55. s. 42.

Performance.] The plaintiff must prove a performance of the work and labour according to the terms of the contract; or, if there is a deviation from those terms, an acquiescence by the defendant in the deviation, vide suprà, p. 283, 284. Thus in an action to recover the value of a riding-habit for which the defendant's wife had been measured, but which was returned to the plaintiff on the day on which it was delivered, it was ruled to be incumbent on the plaintiff to prove that the habit was made agreeably to the order. Hayden v. Hayward, 1 Camp. 180. So a herald, who sues for making out a pedigree, is bound to give some general evidence of the truth of the pedigree. Townsend v. Neale, 2 Camp. 191. Where A., who was employed by the defendant to transport goods to a foreign market, delegated the entire employment to the plaintiff, who performed it without the privity of the defendant, it was held that the plaintiff could not recover from the defendant a compensation for such service. Schmaling v. Thomlinson, 6 Taunt. 147.

Value.] In what manner the value of the work is to be calculated where there is a special contract and deviations from it has been already mentioned, antè, p. 283, 284. Where a tradesman finishes work differing from the specification agreed on, he is not entitled to recover the actual value of the work done, but only the stipulated price minus such a sum as it would take to complete the work according to the specification. Thornton v. Place, 1 M. & Rob. 218.; Chapel v. Hickes, 2 C. & M. 214. In an action for work and labour as a surveyor or architect, the plaintiff is entitled to a reasonable compensation; and it is a question for the jury, whether the usual commission of five per cent. is, under the circumstances, a reasonable or unreasonable charge. Chapman v. De Tastet, 2 Stark. 294.; Upsdell v. Stewart, Peake, 193.

Defence.

Where the work has not been executed according to the contract, the party for whom it is executed may repudiate it, and in such case the plaintiff cannot recover. Ellis v. Hamlen, 3 Taunt. 52., antè, p. 283. So if the defendant has received no benefit from the work, it having been improperly executed by the plaintiff, the latter cannot recover. Farnsworth v. Garrard, 1 Camp. 38.; Montriou v. Jefferys, R. & M. 317. Thus an auctioneer, through whose gross negligence the sale becomes nugatory, can recover nothing for his services. Denew v. Daverell, 3 Camp. 451. But where the defendant has derived some benefit from the plaintiff's services, he must pay pro tanto. Farnsworth v. Garrard, 1 Camp. 38. However, in a late case where the plaintiff had contracted to repair some chandeliers for 107., and returned them incompletely repaired, in an action for work and labour it was held that, as the plaintiff had not performed his part of the contract, he could not recover anything in this form of action, though the jury found that the repairs were worth 51. Sinclair v. Bowles, 9 B. & C. 92. Where a shipwright undertook to put a ship into thorough repair, which had put into port damaged; and, before the work was finished, required payment for the portion done without which he refused to proceed, and the ship lost her voyage; in an action for the work done, it was held that he was entitled to recover. Roberts v. Havelock, 3 B. & Ad. 404.

Defendant may shew, on the general issue, that the work was done under a special contract not executed. Jones v. Nanney, 1 M. & W. 333. So where A. engaged with defendant's landlord to build a house on the defendant's land, and A. made a sub-contract with the plaintiff that plaintiff should do part of the work, and defendant separately agreed to pay over to the plaintiff, directly, all money due for such part of the work upon a discharge from A., it was held that the defendant's agreement did not make him liable to plaintiff for work and labour, but only to an action on the special agreement. Sweeting v. Asplin, 7 M. & W. 165. Where the plaintiff agrees to do work for a certain sum on a false representation by defendant of the quantity of work to be done, he may repudiate the contract; but if he performs it, he can only recover the stipulated sum in this action. Selway v. Fogg, 5 M. & W. 83.

The plaintiff declared for work and labour as an attorney, and defendant paid money into court and pleaded nunquam indebitatus to the residue: held, that the defendant might prove that plaintiff agreed to do the work for costs out of pocket, which did not exceed the sum paid in. Jones v. Reade, 5 A. & E. 529.

As to other defences to this action, see post, " Assumpsit-Defence."

ASSUMPSIT FOR MONEY PAID.

The plaintiff, in an action of assumpsit for money paid to which the general issue is pleaded, must prove, 1. The payment of money by the plaintiff; 2. That it was paid at the request of the defendant and to his use.

The payment of money.] The plaintiff must prove that money was paid; giving a security, as a bond or warrant of attorney, is not sufficient; Taylor v. Higgins, 3 East, 169.; Maxwell v. Jameson, 2 B. & A. 51.; unless, perhaps, where a bill or note is taken as payment. Barclay v. Gooch, 2 Esp. 571. So stock cannot be considered as money. Jones v. Brinley, 1 East, 1. The plaintiff must prove that the money paid was his money. Thus, an under-tenant, whose goods have been distrained and sold to strangers by the original landlord for rent due from his immediate tenant, cannot maintain an action for money paid to the use of the latter; for immediately on the sale under the distress, the money paid by the purchasers vests in the landlord in satisfaction of the rent, and never was the money of the under-tenant; Moore v. Pyrke, 11 East, 52.; but it is otherwise where the under-tenant redeems his goods with his own money; as in Exall v. Partridge, 8 T. R. 308.

The defendant's request.] The plaintiff must prove a request by the defendant, express or implied. Alexander v. Vane, 1 M. & W. 511. Thus if the plaintiff has paid the money without the defendant's request, though to discharge a just debt, no action will lie. Stokes v. Lewis, 1 T. R. 20. So where a broker purchases stock to fulfil a contract entered into by him for his principal, but which his principal refuses to make good, he cannot sue his principal in this action, unless he is also guarantee for his principal. Child v. Morley, 8 T. R. 614. So where the party, to whom the stock was contracted to be sold, on the defendant's refusal to transfer bought the stock himself, and brought assumpsit for money paid to recover the difference in the price of the stock, it was held, that the action could not be sustained. Lightfoot v. Creed, 8 Taunt. 268. A subsequent assent to the payment will be evidence of a previous request. 1 Saund. 264. (n.) 5th ed.

A payment by the plaintiff under a legal obligation will also be equivalent to a previous request; as where one person is surety for another, and is called on to pay, the money paid may be recovered, though the surety did not pay the debt by the desire of the principal. Exall v. Partridge, 8 T. R. 310. When an executor has paid legacies in full, and afterwards paid the legacy duty, it was held, in Foster v. Ley, 2 New Ca. 269., that he might recover the amount paid for duty in an action for money paid against the legatee. So where several are sureties, and one is compelled to pay the whole, he may recover from each of his co-sureties a rateable proportion of the money so paid. Cowell v. Edwards, 2 B. & P. 268.; Deering v. Winchelsea, id. 270.

A co-surety may pay the debt, when liable, without waiting for a