BODY OR SUBSTANCE.-I. IN ASSUMPSIT. 339 cause of stating a total loss, a partial loss may be recovered (z). Where it is IV. ITS positively and expressly averred in the declaration that the plaintiff has PARTS, &c. sustained damages from a cause subsequent to the commencement of the 5thly. The action, or previous to the plaintiff's having any right of action, and the action. jury give entire damages, judgment would be arrested (1); but where 1. In asthe cause of action is properly laid, and the other matter either comes sumpsit. under a scilicet, or is void, insensible, or impossible, and therefore it cannot be intended that the jury even had it under their consideration, the plaintiff will be entitled to his judgment (a) (2). The jury cannot give more damages than are laid at the end of the declaration (b). And if they should do so, the surplus should be remitted before judgment has been entered (3). If the plaintiff have merely incurred liability to pay costs without having actually paid the amount, the declaration should be framed accordingly (c), and even noting and postages on a bill must be declared for specially or cannot be recovered (d). mon Counts in The Common Counts in Assumpsit are frequently sufficient without any The Comspecial count; and even where the declaration contains a special count it is in general advisable to insert one or more of the common counts. Al- Assumpthough the pleading rules, Hil. T. 4 W. 4, now prohibit the use of more sit. than one count on the same cause of action, excepting that a count upon an account stated is always admissible in addition to another count whether special or common, but which still in prudence, as regards costs under Reg. Gen. Hil. Term, 2 W. 4, should never in practice be added, unless [ *340 ] there be adequate ground for expecting to prove it. Though it is a rule that when there was an express contract the plaintiff cannot resort to an implied one (e) (4), yet he may in many cases recover on the common count, though there was a special agreement, provided it has been executed (5) or completely performed (f). A common count used sometimes to save a verdict where the evidence varied from the special count; thus, if the plaintiff declared specially, as having built a house accord (2) 2 Burr. 904; 1 Bla. Rep. 198; Marshall on Insurance, 629; Sayer on Damages, 45; Tidd, 9th edit. 871. (a) 2 Saund. 171, b. (b) Tidd, 9th edit. 896. (c) Pritchett v. Boevey, 3 Tyr. 949. (1) Vide Gordon v. Kennedy, 2 Binn. 287. (2) Shaw v. Wile, 2 Rawle, 280. (d) 2 Crom. & J. 408. (e) 2 T. R. 105, 640; 3 East, 80, 85; 6 T. R. 325; 1 Stra. 648; 3 B. & P. 247. (f) See post, 347 to 349, and exceptions there stated. (3) Tenant v. Gray, 5 Munf. 494; Harris v. Jaffray, 3 Har. & J. 546; Hoit v. Malony, 2 N. Hamp. 322; Crist v. Hodges, 3 Dev. 203. (4) Vide Richardson v. Smith, 8 Johns. 439; Burlingame v. Burlingame, 7 Cow. 93, 94; (5) Indebitatus assumpsit will lie to recover the stipulated price due on a special contract, Bank of Columbia v. ox, 5 Dowl. & Ryl. IV. ITS cause of action. 1. In as ing to an agreement, if he failed to prove that he had built it pursuant PARTS, &c. to agreement, he might still in some cases recover on the common count 5thly. The for the work and labor actually done (g) (1). And where a bill of exchange, or promissory note, upon an improper stamp, had been taken in payment of a debt, the plaintiff was at liberty to resort to the common counts sumpsit. appropriate to the original debt (h) (2), and which additional counts is now expressly permitted to be added in an action on a bill or note. He may also ground his claim upon such counts, if applicable to the original consideration, in cases where the bill or note has been dishonored, and the defendant, when necessary, has had due notice (i). But where the demand is founded upon a written agreement, which ought to be, but is not stamped, plaintiff was not permitted to resort to an implied contract, in Common counts. (g) See post, 348, 349. (h) 1 East, 58; Chit. on Bills, 7th edit. 363, 366; Phillips on Ev. 5th edit. vol. i. 509. (i) See post, 347. (1) Where a party declares on a special contract, seeking to recover thereon, but fails in his right so to do altogether, he may recover on a general count, if the case be such that, supposing there had been no special contract, he might still have recovered for money paid, or for work and labor done. Cooke v. Munstone, 1 New. Rep. 355; Tuttle v. Mayo, 7 Johns. 132; Linningdale v. Livingston, 10 Johns. 186; Keyes v. Stone, 5 Mass. 391. Or for use and occupation, (Perrine v. Hankinson, 6 Halst. 181,) or for money had and received, Schillinger v. M'Cann, 6 Greenl. 364. And although the plaintiff may resort to the general counts without having attempted to prove the special agreement, yet in no case can he recover on the general counts where the special agreement continues in force. Linningdale v. Livingston, 10 Johns. 37; Raymond v. Bearnard, 12 Johns. 274; Wilt v. Ogden, 13 Johns. 56; Jennings v. Camp. Id. 94; Felton v. Dickinson, 10 Mass. 287; Shepard v. Palmer, 6 Conn. 100; Speake v. Sheppard, 6 Har. & Johns. 81; Arnold v. Paxton, 6 J. J. Marsh, 505; Stevens v. Cushing, 1 N. Hamp. 17; Blair v. Asbury, 4 Porter, 435; Crammer v. Graham, 1 Blackf. 406; Outwater v. Dodge, 7 Cowen, 85; Porter v. Beltzhoover, 2 Harrington, 484; Ames v. Le Rue, 2 M'Lean, 216; Londegron v. Crowles, 12 Conn. 558; Fowler v. Austin, 1 Howard, (Miss.) 156; Morrison v. Ives, 4 Smedes & Marshall, 652; Stollings v. Sappington, 8 Missouri, 118; Christy v. Price, 7 Missouri, 480; Charles v. Dana, 2 Shepley, 383; Ames v. Sloat, Wright, 577. Indebitatus assumpsit will not lie where the agreement is not for payment of money, but for the doing of some other thing; the action in such case must be special, Spratt v. M`Kinney's, 1 Bibb. 595; Brookes v. Scott, 2 Munf. 344; Cochran v. Tatum, 3 Monro, 405; Snedicor v. Leachman, 10 Alabama, 330; Burrall v. Jacot, 1 Barbour, 165. Where goods are sold and delivered on a special contract, that the buyer shall pay therefor in town orders payable at a future day, and he fails to procure the orders, the seller cannot maintain indebitatus assumpsit for the goods before the time, when the orders were to be payable, has expired. Before that time, his only remedy is by an action for breach of the special agreement. Hunneman v. Grafton, 10 Metcalf, 454. See Allen v. Ford, 19 Pick. 217; Yale v. Coddington, 21 Wendell, 175; Martin v. Fuller, 16 Vermont, 108. And where the plaintiff declares specially he cannot recover on evidence applicable to the general counts only; such evidence being objected to. Davenport v. Wheeler, 7 Cow. 231; Hollinshead v. Mactier 13 Wend. 276. In that case it was held, that if a man contract to work by special contract so far as the work was done according to the contract, the compensation should be according to the contract; but as to that part where the contract was abandoned, he should recover according to the work done as if no contract had existed. The same rule was adopted by the court in Dubois v. The Deleware and Hudson Canal Company, 4 Wend. 289. See also Merrill v. The Ithaca & Oswego Rail Road Co., 16 Wend. 586. See Chitty Cont. (5th Am. ed.) 566 n. 1. 569 n. 3. (2) So in an action against two defendants upon a promissory note, if the note be void as to one of them, the plaintiff may recover against both on the general counts. Wilkins v. Reed, 6 Greenl. 220. A promissory note is evidence under the money counts in an action by the indorsee against the maker. New Jersey B. Co. v. Myers, 7 Halst. 141. So in an action against the indorser. Ellsworth v. Brewer, 11 Pick. 316; State Bank v. Hurd, 12 Mass. 172; Hodges v. Holland, 16 Pick. 395; Remsey v. Duke, 1 Morris, 385; Knight v. Fox, 1 Morris, 305; King v. Wall, 1 Morris, 187; Goodwin v. Morse, Metcalf, 278; Moore v. Moore, 9 Metcalf, 417. See Wild v. Fisher, 4 Pick. 421; Ramsdell v. Soule, 12 Pick. 126; Webster v. Randall, 19 Pick. 13; even though it was payable in foreign bills, Young v. Adams, 6 Mass. 182; or if the maker signed merely for the accomodation of the payee. Cole v. Cushing, 8 Pick. 48; and although it does not purport to be for value received. Townsend v. Derby, 3 Metcalf, 363. So a check on a bank, in which the drawer has no funds, may be given in evidence under the money counts, in an action against the drawer, without showing presentment. Cushing v. Gore, 15 Mass. 69. See Ellis v. Wheeler, 3 Pick. 18; Ball v. Allen, 15 Mass. 433. order to avoid the production of such express agreement (k): and if there IV. ITS were no privity between the parties independently of the special contract, PARTS, &c. the common counts would be of no avail (1). The entering of a nolle 5thly. The sequi to a special count would not bar a recovery upon a common count action. for the same demand (m). pro cause of 1. In as Common counts in an action of assumpsit are founded on express or sumpsit. implied promises (n) to pay money in consideration of a precedent and Common existing debt. In general the consideration must have been executed, not counts. executory and the plaintiff must have been entitled to payment in money, not merely to the delivery of a bill of exchange or of goods, unless the time for payment of such bill has expired (0). * It has been said that the common counts will not lie in any case in which debt is not sustainable (p)(1). This may be true as a general rule, but there are some exceptions. Thus debt on simple contract could not be maintained against an executor, to recover a debt which was due [ *341 ] from the testator(q),(but which was altered by 3 & 4 W. 4, c. 42, s. 14); nor can debt be brought for the recovery of part of a debt payable by instalments, the whole of which have not accrued due (r); but assumpsit may be maintained in both cases. It has also been doubted whether debt. lies on a quantum meruit count (s); but certainly such count was sufficient when framed in assumpsit. The common counts were of four descriptions. 1st, The indebitatus count. 2dly, The quantum meruit. 3dly, The quantum valebant; and 4thly, The account stated. counts. The indebitatus assumpsit count (t), since the Reg. Gen. Hil. Term, 4 Indebitatus W. 4, states, that "the defendant, on," &c., (a named day before the is- assumpsit suing of the first process in the action)(u), was indebted to the plaintiff in a named sum of money, for, &c. [as for use and occupation, or for real property sold (x), or goods sold, or for personal services, or for money lent, paid, or had and received, or for interest, or for some other preexisting debt on simple contract, 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 of money on request" (2). (k) 2 B. & P. 118; 3 Esp. Rep. 213; 1 N. R. 273; 2 Marsh. 273. If the plaintiff can make out his case without producing a written agreement, or disclosing that there is one, the defendant cannot produce it unless it be stamped, see 6 Bing. 332. () 3 M. & Rel. 173; 3 Campb. 101; Chitty on Bills, 7th ed. 364; Phillips on Ev. 5th ed. vol ii. 109. (m) M. & M. 311. (a) There is not, in pleading, any difference between an exprees and implied promise. (0) Post, 346. (p) Salk. 23; 2 Lev. 153; Carth. 276. (s) Ante, 109 note (q). (t) See the form, vol. ii. (u) The exact time is not material in the common counts; but where there is a special count on a bill of exchange, &c. preceding the common counts, it is usual and proper in the first common count to lay the day after the bill was due, or other special cause of action was complete; and in the subsequent counts and in the breach to refer to the last mentioned day; 1 Wils. 33. Venue is now to be omitted in the body of the count, but time is still to be repeated to every traversable allegation, or the defendant may demur specially. (x) Sed quære if it lies for real property sold, &c. See post, 343, 344. (1) Where there is a subsisting unexecuted agreement indebitatus assumpsit will not lie. Stollings v. Sappington, 8 Missouri, 118; Christy v. Price, 7 Missouri, 430; Chambers v. King, 8 Missouri, 517; Charles v. Dana, 2 Shepley, 383; Ames v. Sloat, Wright, 577; Hall v. Blake, Wright, 489. Where damages are claimed for the breach of a special contract the declaration must count on the contract. Royalton v. R. & W. Turnpike Co, 14 Vermont, 311; Mann v. Locke, 11 N. Hamp. 246. (2) A declaration in indebitatus assumpsit, though it aver neither time, nor place, nor any request to pay, is good on general demurrer.. Keyser v. Shafer, 2 Cowen, 437, VOL. I. 47 PARTS &c. cause of action. IV. ITS 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 5thly. The 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 defen 1. In asant, had done work, &c. (stating the subject matter of the debt according sumpsit. to the fact, and usually as in the indebitatus count), he the defendaut Quantum promised the plaintiff to pay him so much money as he therefore reasona bly deserved to have ;" and the count then averred, "that the plaintif therefore deserved to have a named sum, whereof the defendants afterwards, to wit, on, &c. aforesaid, had notice." meruit counts. Quantum counts. The quantum valebant count was in general confined to the case of a valebant 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 vale[*342] bant as useful, and as then to have been supposed necessary precautions 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 meruil and valebant counts. Account stated. The Com mon 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, Breach be- not regarding his said promises and undertakings, but contriving and fore Reg. craftily and subtly intending to deceive and defraud the said plaintiff in Gen. Trin. that respect (y), hath not (although often requested so to do) (z), as yet T. 1 W. 4. paid to the said plaintiff 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 is 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). Of the application of these 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 counts in first ventured on them; but they are now much more frequent than the general. special counts, when the action is for a Common debt or for any money Wils. 33; ante, 331. (y) Ante, 336, 337. (z) The printed forms generally contain a special request, but this is unnecessary, 1 (a) See ante, 332; post, 359; and post, vol. ii. BODY OR SUBSTANCE-1. IN ASSUMPSIT. 342 5thly. The cause of demand (b). It is not sufficient to state merely that the defendant "was IV. ITS indebted to the plaintiff in a certain sum, and promised payment (1); it PARTS, &c. must be shown what was the cause or subject-matter or nature of the debt; as that it was for work done, or for goods sold, &c. (c). But it is not ne- action, cessary to state the particular description of the work done (2), or goods 1. In assold, &c.; for the only reason why the plaintiff is bound to show in what sumpsit. respect the defendant is indebted, is, that it may appear to the Court that it Common is not a debt of record or specialty (3), recoverable in another form of action, counts, but only on simple contract; and any general words by which that may ap- [ *343] pear are sufficient (d). Unnecessary 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 debt 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 (f) (4). 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. The common counts relating to Real Property most frequently occur where the action is brought, either for the recovery of a sum agreed to be (b) 2 Stra. 933; 1 Saund. 269, D. 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. 250, note 2, 873; 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, 276. (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. (1) Beauchamp v. Bosworth, 3 Bibb. 115; Chandler v. State, 5 Har. & Johns. 284; Maury r. Olive, 2 Stewart, 472. It is however, sufficient, by long practice, in Massachusetts to state the indebtedness "according to account annexed" to the writ, the schedule supplying the allegation of consideration. Rider v. Robbins, 13 Mass. 284. (2) Lewis v. Culbertson, 11 Serg. & Rawle, 49. Vide Edwards v. Nicholls, 3 Day, 16. (3) 11 Serg. & Rawle, 49. (4) Acc. Bailey v. Freeman, 4 Johns. 289. 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. 483. Common counts as to Real Property in particu lar. |