CH. 9. hence there must be a breach of it to give rise to a suit. Then, Art. 22. 1st, if the plt. perform his part and the deft. neglect his, the plt. (suing in time,) of course has his action on it, and on this only. 2. If the plt. do not perform his part, he has no suit; if in part, none, unless that in some way be accepted; if a part and something else, his remedies, if any, are two. As if A agree to build me a house for $5,000, and a barn for $1,000, one entire contract; he does neither, he has no action. If he build the house only, he has no action, unless the jury can find I accepted it, as part performance gives him a right but by my assent to it; and if I any way assent to it, his right is the $5,000. If he build the house, and instead of the barn, a fence, the case of the house is as last stated; as to the fence he has no claim, unless I accept it expressly or impliedly; if I accept it, the case of the fence comes within Kech's case, as stated s. 14. 3. If the deft. by rescinding the special contract, or otherwise hinder the plt's. remedy on it, he then may resort to an implied promise, and go on his common counts, for the law will imply that if I prevent the special contract being sued, I submit to the justice and equity the law intends and implies. 10 Mass. R. 230, 350, Richards v. Killam. 19. Assumpsit will not lie for a fraudulent assignment under seal of a bond, though the bond be forged. The assignment containing special covenants as to the recovery of the money suppposed to be due on the bond assigned, this action was on an implied promise on the deft's. part, that said bond was genuine. The party makes a written or verbal promise, or the law implies one. To state every sufficient consideration must be an endless and a useless undertaking. In thousands of different forms of declarations in the books, sufficient if true to maintain the action, this sufficient consideration is expressed and appears. This consideration is better understood by attending to a few principles, than by running through all the numerous cases; this has been done in a former chapter. Most of the considerations in assumpsit appear in these forms of expression, and the same also shew the right of action. 20. First, in consideration the plt. sold to the deft. at his request the goods described in the declaration, or in a schedule annexed, he promised to pay the plt. as much money, as they were reasonably worth at the time of the sale and delivery. $21. Second, in consideration the plt. laboured or permitted his minor son, apprentice, servant, or hired man to labour for the deft., in some work or business described in the declaration or schedule annexed, he promised to pay the plt. as much money as he deserved to have therefor § 22. Third, in consideration the plt. permitted the deft., at his request, to use and enjoy, for such a time, such the plt's. property described in the declaration or schedule annexed, he the deft. promised the plt. to pay him as much money as he deserved to have therefor. In such case the promise is to pay on demand, where no time of payment is specially agreed upon. § 23. If the plt. let the deft. have at his request, any kind of property of use or value to either; or do for him any labour as a physician, attorney, &c.; or allow him to use or enjoy any of the plt's. property, as his house, store, wharf, vessel, &c.; an action lies for payment, either for the price agreed on, or for a reasonable sum. 24. There are, however, some cases in assumpsit besides those stated in former chapters, in which questions arise, if the plt. can maintain an action. These will be noticed in the following chapters, the grounds of a sufficient consideration having been examined. Сн. 10. Art. 1. 332.-1 Com. § 25. If the heir promise the father, intending to cut down 1 Vent. 318, timber to raise his daughter's portion, to pay so much for her D. 197.portion, if he will not cut it, she may have assumpsit against 2 Lev. 211. the heir for the sum promised. In this case the consideration or motive influencing the son to promise is good, to save the timber on the estate coming to him, he is moved to promise to pay his sister a certain portion. The father is to be considered in two points of view. 1. As the owner of the estate, and as having a power and right to take off the timber to raise his daughter's portion. 2. As acting for his daughter and in her behalf, and taking a promise to pay her her portion, giving her a right to sue for it. § 26. A case in which the law raises no promise for meritorious services done, as where A worked for a committee who had resolved," that any service to be rendered by him should be taken into consideration, and such remuneration made as should be deemed right." Held, A could have no action for such work, as the resolution imported the committee was to judge if any remuneration was due. 1 Maule & Sel. R. 290, 291. CHAPTER X. ACTION OF ASSUMPSIT. AGISTMENT. 308, 309. ART. 1. Agistment. The plt. brings this action against Imp. M. P. the deft. for agisting, feeding, keeping, and depasturing the 1 Bac. Abr. deft's. cattle. The action may be indebitatus assumpsit, or 243. quantum meruit. Сн. 10. Moore 543. -Imp. M. P. 307.-8 Co. 63, Caly's case.-Bul. 1. If A take a horse to pasture and he be stolen, no action lies against him, unless he make a special promise to deliver him; for he undertakes to feed him in the fields, and not to keep him safely, as the hostler is obliged to do, in his stable. 2. And he who takes beasts to feed in his pasture, cannot retain till he is paid their keeping. He has no lien, unless it be so expressly provided for, and if lost for want of ordinary care, he must be liable to an action for them. As the law lays Cro. Car. 271, him under no particular obligation to preserve the creatures, in Chapman v. his pasture by the owner's consent, on the one hand, so it gives Allen-Imp. him no lien or special advantage to retain for his pay, on the 128, 129, 131, other. And as to bailment he is on the ground of a common 2 Esp. 346. bailec. N. P. 45. 308.-Jones Imp. M. P. 307. Chapman v. Jones 280. § 3. In agistment, various kind of creatures, as horses, sheep, horned cattle &c. for various periods of time may be taken in, by the season, the month, the week, or the day, by the head, by the pair, by the dozen, score, &c. It is called agistment, because the cattle are suffered to be agiser, that is, to be levant and couchant on the land—and large tracts of land are often profitably employed in this way. § 4. Whenever one takes in creatures to pasture, he takes them on an implied promise to return them on demand to the owner. 5. It is a good declaration in this action, to allege, the deft. is indebted to the plt. in £10 for the feeding and agistment of beasts; for though it is not sufficient to allege generally, he was indebted, for this may be for rent upon leases, or debts upon specialties, yet this is certain enough, for the declaration states it to be for pasturing, a matter for which assumpsit will lie. 6. Agistment in England, especially in ancient times, was much connected with the forest laws, as a very considerable portion of it was in the forests; but there has been nothing of this in the United States. Anciently there was an officer, called the agistor, whose business it was to present trespasses by beasts in the forest, and if he presented any that did not belong to his office, he was fined. 7. When, many years since, a chapter was allotted to this subject of agistment, or pasturing various kinds of creatures, there were existing many statutes in the several States on it, and it was expected that in the course of a number of years many decisions would be made on them; but it has so happened that no American decisions deserving any notice, have been found on the subject. The numerous English cases growing out of the tithe system are of no use in the United States. ART. 2. Agistment on Mass. statutes. Though there never has been in the United States any kind of agistment, or feeding of cattle in forests under divers regulations, as there has been in England, yet in some of the states, and especially in Massachusetts, there long has been a species of agistment, or feeding of horses, sheep, and horned cattle, in the roads and highways, regulated by statute law, and also on commons. CH. 10. Art. 2. Act, A. D. 2. In the Colony of Massachusetts there was a law to prevent sheep feeding on the commons without a shepherd, for a part of the year. In 1693, this law was revised, and it was Province enacted, that for every sheep in every town going on the com- 1693. mons without a shepherd from May 1 to Nov. 1, yearly, the owner or keeper should pay a fine of 3d. This law was revised Feb. 13, 1789. 3. By an act passed in the Province of Massachusetts Province Act, A. D. Bay, in 1698, it was provided, that neat cattle, horses, or 1693. sheep, going upon the commons, not allowed to feed there by the major part of the proprietors empowered to permit the same, might be impounded in the manner pointed out in the act. 4. By this act all horse kind of a year old going at large Mass. Act, on the common or ways in any town, are to be sufficiently Feb. 3, 1789. fettered, on penalty of fifty cents, from April 15 to Nov. 1; but power is given to towns at their annual meetings in March or April, by vote to grant liberty for horses to go at large with- Mass. Act, out fetters, between the said fifteenth day of April and the 1793. first day of Nov. yearly. This act, by another passed June 22, 1793, is extended to asses and mules. June 22, 1789. $5. By this act, field drivers are empowered to take up Mass. Act and impound any swine unyoked or unringed, horses unfet- of Feb. 14, tered, sheep not under the care of a shepherd, or going at large on the common or highways, between the fifteenth day of April and the first day of November, yearly, and to proceed with them in the manner pointed out in the act. Mass. Act, Feb. 26, § 6. By this act each town may direct, that neat cattle, horses, or horse kind, mules, or asses, shall not go at large, on 1800. penalty of twenty-five cents for each beast, at any one time, to be recovered by impounding, by any inhabitant of the town. 1804. 7. By this act, towns are empowered to direct, that any Mass. Act, particular description of neat cattle, or other commonable Nov. 21, beasts, shall not go at large without a keeper; and the owners of beasts thus going at large against law, and doing damage, are made liable to make satisfaction therefor, in lands of others, "whether such improved lands be inclosed with a sufficient fence or not." Laws in substance like these are, or probably will be, found necessary in each State Сн. 11. Pl. Com. 17. Cooper's Pl. 182.4 Wheaton 225, 230. 3 T. R. 524, Curry v. Edensor. See Coke v. Oxley, Ch. 22, a. 22. Hob. 41, 42, 1 Com. D. See Ch. 16, a. 2. Salk. 113. 6 Mod. 162. Tiler, 1 Esp. 15-2 Bl. Com. Chris. Notes 57, 58. -12 Mod. 345. Ch. 80, a. 45. -5 T. R. 409, Bach v. Owen. CHAPTER XI. ASSUMPSIT. AGREEMENT WRITTEN, HOW REQUIRED OR NOT. ART. 1. Agreements what. This is aggregatio mentium, when two or more minds are united in a thing done, or to be done; and it ought to be so certain and complete, that each party may have an action upon it; and there must be quid pro quo.. 1. An agreement ceases by being put in writing under seal; but not when put in writing for a memorandum. 2. A promise accepted becomes an agreement, for the minds of the parties unite in the thing-but essential to agree the price and the very terms. 3. An agreement shall always be expounded according to the intention of the parties, and have a fair construction. 4. Hence, a broker, when he bought goods for his principal, agreed for half per cent. to indemnify him from any loss on the resale; the principal had a fair opportunity to sell to advantage, but neglected, and afterwards was obliged to sell at a loss; it was held, that the broker's promise was discharged, and no action lay against him. $5. Agreement when void. If one agree for goods at such a price, the bargain is void, and no action lies, if the price be not immediately paid, or a future day of payment agreed on. But if the seller deliver the goods without either, the agreement is good. So without either, if the vendee afterwards pay, for this payment has relation to the first agreement. ART. 2. Earnest. So if the price be agreed, and the vendee pay part, as earnest, the contract is perfected, and an action lies on it; and the same if a pay-day be fixed upon. § 1. The effect of paying earnest. Earnest only binds the bargain, and gives the party a right to demand; as where the deft. bought four tubs of tea of the plt., paid for one and took it away; and left £50 in earnest for the others there: Holt, C. J. ruled, that though earnest was paid, the money must be paid on taking away the three tubs, as no other time of payment was appointed. 2. That earnest only bound the bargain, and gave the vendee a right to demand, but then a demand without payment was void. That after earnest paid, the vendor cannot sell the 1 Bro. C. C. goods to another, without a default in the vendee. If the vendee do not pay and take away the goods, the vendor ought to request him. Then if he do not pay and take them in a reasonable time, the agreement is dissolved, and the vendor is at 417. |