ject from the cause of action, from the right to immunity from personal violence and its infringement: that is, the beating.

The term, cause of action, and the facts that constitute it, form an essential part of the subject-matter of enquiry, and we might perhaps so extend the phrase, "subject of the action," as to embrace them, were not the effect sometimes to improperly narrow the plaintiff's right to unite different causes of action, or the defendant's right to counter-claim.

This construction of the term is given with some hesitation, inasmuch as its full and exact scope does not seem to have been judicially considered, although most of the cases, as given in the note, are only consistent with the view here taken. The same phrase is used in regard to counter-claims, and it should, in that connection, receive the same construction as when applied to the union of causes of action."

77 In ADAMS v. BISSELL, 28 Barb. 382, the defendants were sued as carriers of goods, and in one statement the plaintiff charged them with negligence and waste, and in another claimed a sum of money as overpaid on freight. The joinder of the two causes of action was sustained, which could only be done because both transactions were connected with the matter of the affreightment. See criticism on opinion in this case in Pom. Rem. Rights, §§ 468, 469. In BADGER v. BENEDICT, 4 Abb. Pr. 176, the plaintiff had furnished the defendant with stereotype plates for a book which he had agreed to print. The plaintiff sued him for not complying with his contract, and also for injuring the plates, and the joinder of the two causes of action was sustained. They did not arise out of the same transaction, for there were two-the contract and the injury to the plates; but both these transactions were connected with the subject of the action-that is, with the subject-matter of the contract-which was the printing the books. In Hamlin v. Tucker, 72 N. C. 502, the plaintiff embodied in his complaint three causes of action: first, for harboring and maintaining his wife; second, for converting personal property to which he was entitled jure mariti; third, for inducing the wife, while so harbored, to execute to defendant a deed of land from which he had received rents. The joinder was sustained upon demurrer, because all the causes of action arose out of transactions connected with the same subject of action; they were all unlawful interferences by the defendant with the marital rights of the plaintiff. In Lovensohn v. Ward, 45 Cal. 8, a counter-claim was held to be improper because it pertained to property not involved in the litigation. The action was replevin, and the court held that the subject-matter of the action was the property named in the complaint. In Jones v. Steamship Cortes, 17 Cal. 487, the action was by a passenger who had been carried beyond her des

$127.

Second Class:

Joinder of Causes arising out of
Contract.

The Code permits the union in one complaint or petition of several causes of action where they all arise out of "(2) contract, express or implied." 78 This union, as we have seen, is allowed, at common law, only as to certain classes of actions and contracts. Thus, several simple contracts, for which assumpsit lies can be enforced in one action, because each count in the declaration can be met by the general issue of non-assumpsit. But if the plaintiff would sue in debt, he can only unite those demands the pleading of which can

tination, and the complaint counted upon the contract and its breach, and upon the fraud practiced upon the plaintiff to induce her to purchase a passenger ticket. The California statute omits the class of causes under consideration, but the court holds that everything connected with the transaction should be settled in one action; that the plaintiff should be permitted to recover for the breach of the contract, and for the wrongs and injuries committed by defendants in connection with it. In See v. Partridge, 2 Duer, 463, difficulties had arisen between building contractors and the owner, some of which had been submitted to arbitration. The plaintiff sought to set aside the award; also, to recover a balance due, on the contract; also, to recover for extra work and materials; and, also, for damages arising from having been hindered and delayed by the defendant in completing the work. The union of the several causes of action was sustained, as all connected with the same subject of action. The New York Court of Appeals has been less liberal in the construction of the phrase, both in this connection and in regard to counter-claims, than the courts of most states. In Keep v. Kaufman, 56 N. Y. 332, the plaintiff sued upon a covenant for quiet enjoyment, and in the same complaint charged a trespass in entering the plaintiff's premises by false keys and breaking open his trunk. The union was forbidden, although the act complained of in both counts was the same-not because it was the same, but because one cause of action was founded on contract and the other on a tort. In Wiles v. Suydam, 64 N. Y. 173, the complaint charged the defendant with a liability because of a debt due upon his stock subscription to a corporation, of which he was an officer, and in another count, with a statutory liability for not keeping proper records. The union of the causes of action was held to be bad on demurrer. See further authorities as to the meaning of the phrase, cited in treating upon counter-claims, where the same court gives it a broader construction as to a class of actions. Post, § 375a.

78 [Gridley v. Gridley, 24 N. Y. 130; Stewart v. Balderston, 10 Kan. 131; Vogler v. World Mut. Life Ins. Co., 51 How. Pr. 301.]

be met by the general issue of nil debit, which plea is not permitted when the foundation of the action is a sealed instrument. So, in declaring in covenant, only covenants can be united. The distinction once so broad between simple contracts and those under seal is growing less and less; in some states it is abolished. In respect to the pleading, the Code knows no difference, and causes of action for the breach of any sort of contract may be united in one proceeding."

§ 128. Implied Contracts.

The permission is to unite actions upon contracts, express or implied. It is said that an implied agreement is but an obligation created by law, warranted by justice, but not by the assent and often against the will of those who are to be charged. So far as this is so, such obligations are not based upon contract, and cannot, upon principle, be so classed. The assumption in such a case that an agree ment is implied is untrue in fact. When we speak of an implied agreement, there should be an actual understanding of the parties, though not expressed in words. Thus, one man works for another; if the service is understood to be a gift, there is no contract, no im plied promise to pay. But men usually claim the fruits of their labor, and when one so works at the request of the other, and there is nothing to show that the service was sought and intended as a gift, we are warranted in assuming a mutual understanding that it

79 The Kentucky Code omits class first as given in section 112, and its Supreme Court has been driven to a rather forced construction of the class now under consideration in order to sustain a union which seemed called for by the ends of justice. The stockholders of an insolvent bank brought suit against the assignor of the bank, and the president and directors, charging the latter with gross fraud in managing its affairs, seeking to compel them to make good the losses which had occurred through their misconduct, and also asking that the trustee be required to execute his trust and account under the direction of the court. Objection had been made on account of misjoinder, and sustained below, because the suit to settle the trust was founded in contract and connected with one against the president and others in tort. The Supreme Court held the joinder to be proper, because the tort was directly connected with the contract, and the law implied a contract on the part of the officers of the bank to do their duty. Jones v. Johnson, 10 Bush, 649.

is to be sold and paid for; " the contract is implied, because it tacitly exists in the minds of the parties. So, if one obtains money or goods, the expectation on one side is to pay, as it is on the other to loan or sell, and not to give; and if one receive money to another's use, the fact of so receiving it shows an expectation to account for it. In speaking, then, of an implied contract, we only supply the words and those understood by the parties, and the one who received the benefit of the transaction will not be permitted to say that he secretly designed not to pay, but to cheat, the other party.

Although these remarks will apply to a large class of cases where, at common law, a contract is said to be implied, and where a promise is laid in the pleadings, yet they cannot to all. There are cases in which assumpsit is held to lie, where no promise, as a fact, can be implied, where the promise, as alleged, is a naked fiction, where there is an obligation merely, and where, logically, debt, or case, or trespass should be the form of action. I refer to legal obligations in respect to those through whom the debt accrued, and to obligations arising from injuries.

Thus, at common law, one may lay a promise from the husband to pay for necessaries furnished to a wife, although against his express command, and also lay a promise to pay for goods wrongfully converted by the defendant, although under a claim of ownership. As the Code expressly refers to implied contracts, these, as well as those where the agreement is understood, will probably continue to be treated as agreements; and thus one of the most marked fictions in common-law pleading is perpetuated. I shall again speak of this subject.81

80 Such an understanding can hardly be presumed in favor of a son or daughter who remains at home and continues to labor after majority, and because children so frequently remain and without any expectation of pay. In FRIERMUTH v. FRIERMUTH, 46 Cal. 42, the rule of liability is thus given: "When a son remains with, and performs services for, his father after reaching his majority, the law will not, ordinarily, imply a promise on the part of the father to make pecuniary compensation for the labor. But if the circumstances show that it must have been the expectation of both parties that he would receive compensation, then a promise will be implied." Citing Andrus v. Foster, 17 Vt. 556, and Dye v. Kerr, 15 Barb. 444; [Ashton v. Shepherd, 120 Ind. 69, 22 N. E. 98.]

81 Post, §§ 152-154. The language of the Code providing for the union of

There are cases where a contractual relation is created between the parties without privity,-as, where the person sought to be charged has received money for the use of another; or where, without having seen the creditor, he, for a consideration, has promised the debtor to pay his debt; or where money has been remitted to him with directions to pay it over, and he keeps the money; or where an estate has been devised, charged with the payment of debts and legacies, and the devisee accepts the estate. In these cases a duty arises and consequent legal obligation. The party has assumed, has promised, either expressly or by inference, yet the promise is not made to the plaintiff-between them there is no contract, no privity-yet at common law the defendant is charged with having made the promise to him. While, under the Code, we recognize the obligation and class it among contracts, yet the promise to the plaintiff is a fiction, and, upon principle, should not be alleged.82

§ 129. Third Class: Injuries.

Causes of action that arise from "(3) injuries with or without force to person and property, or either," may be united in one pleading. Injuries with force are still called trespasses, and at common law, the wrong is redressed usually through the action of trespass, unless

causes of action arising out of "contract, express or implied," followed by the next classification as embracing causes of action arising from "injuries," etc., compels us to recognize the common-law doctrine that all obligations arise either from contracts or from torts-they are either ex contractu or ex delicto-and also compels us to class with implied contracts the obligations quasi ex contractu of the Roman law; that is, obligations to be treated as arising out of contract, although they do not do so in fact. See 2 Co. Inst. lib. 3, tits. 13, 27, with Sanders' Comments. A contract implies mutual consent, but without it there may be duties, and hence obligations, the fulfilling of which should be enforced as though there had been a contract; hence this class of obligations. Pothier thus defines it: "A quasi contract is the act of a person, permitted by law, which obliges him in favor of another, without any agreement intervening between them." Poth. Obl. pt. 1, p. 113, § 2. The phrase "permitted by law" distinguishes the act from delicts or injuries.

82 Upon the liability in this class of cases, without privity, see post, §§ 241, 242b, and notes.