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ACTION OF COVENANT

305


It may be maintained whether the Covenant for the Breach of which it is brought is Ex­press, or is to be Implied by Law from the terms of the deed,° and whether it be for something that has been done in the past, or something in praesenti, or for the per­formance of something in the future.’°
The Damages sought to be recovered need not necessarily be unliquidated. If they are
The Action is proper to recover damages for Breach of a Covenant of Warranty, or of seisin, or against ineumbrances, or for quiet enjoyment, contained in a conveyance of land under seal. Illinois: Moore v. Vail, 17 Ill. 185 (1855); Harding v. Larkin, 41 III. 413 (1866); Jones v. Warner, 81 III. 343 (1876); Illinois Land & Loan Co. v. Banner, 91 Ill. 114 (1878); Massachusetts: Barlow cc Thomas, 15 Pick. (Mass,) 66 (1833); Donahee v, Emery, 9 Mete. (Mass.) 63 (1845); Michigan: Hovey v. Smith, 22 Mich. 170 (1871); Peek v, Boughtaling, 35 Mich. 127 (1876).

The Action lies for the wrongful dissolution of a part­nership by articles under seal. Addams v. Tutton,

39 Pa. 447 (1861).

Or upon a bond with a pennity. Pennsylvania: New

Holland Turnpike Co. v, Lancaster, 71 Pa. 442

(1572); Federal: United States v. Brawn, 1 Paine

422, Fed.Cas.No.14,670 (1876).
8. Alabama: Roebuck v. Duprey, 2 Ala. 535 (1841);

Massachusetts; Dexter v. Manley, 4 Cush. (Mass.)

14 (1840); Gates v. Caldwell, 7 Mass. 68 (1810);

New Hampshire: Crouch v. Powlc, 9 NIl, 219, -32

Am.Dee, 350 (1838); New York: Grannis v. Clark,

S Cow. (N.Y.) 36 (1827); Frost v. Raymond, 2 Caines

(N.Y.) 118, 2 Am.Dec. 228 (1814); Kent v. Welch, 7

Johns, (N.Y.) 258, 5 Am.Dec. 266 (1810); Vandei’­karr v. Vanderkarr, 11 Johns. (N.Y.) 122 (1814).
Whether or not a Covenant will be implied is a ques­tion of Substantive Law, and has nothing to do with the Porm of Action, or any question of plead­ing. Whether the Covenant is Express or lmpiiod, the Method of Pleading is the same. Grannis v. Clark, 8 Cow. (N.Y.) 36 (1827),
10. Illustrations of C venants for something in praescnti are found in Covenants against incum­brances contained in a deed of land, Jones v. Warn­er, 81 Ill. 343 (1876); or Covenants of Seisin, Brady v. Spurck, 27 III. 478 (1861). These are really Can-tracts of Indemnity against loss by defects of title.
A Covenant of quiet enjoyment is an illustration of a Covenant for cometbing in the future. Srndy v. Spurek, 27 Ill. 478 (1861). And any promise under seal, whether to pay money, or to do some other act, or to forbear from doing some act, is such a Cove­nant,

liquidated, so that Debt will lie, the plaintiff may nevertheless bring Covenant instead, for the remedies are concurrent; but if the sum, the payment of which is secured by a Writing under Seal, is unllquidated and uncertain in amount, Covenant is the only remedy for its recovery.” Indeed, since Assumpsit will not lie for Breach of a Contract under Seal, it follows that Covenant is the only remedy to recover unliquidated Damages for the Breach o.f a Contract under Seal.


COVENANT-.-DISTINGUJSIJED FROM AND CONCURRENT WITH OTHER ACTIONS
145. Covenant may be distinguished from Debt, as it lies only on an instrument under Seal, whereas Debt lies upon a Statute, a Rec­ord, a Simple Contract and on a Specialty. Where the Damages are liquidated upon Breach of a Sealed instrument, Debt and Covenant are concurrent remedies; but where the Damages are unliquidated only Covenant will lie. Special Assumpsit and Covenant are in no instance con­current, but Covenant and Case are as against a tenant for yeas’s who committed Waste.
THE Action of Covenant is distinguishable from Debt in that it lies only on a sealed instrument, whereas Debt lies upon a Statute, a Record, and a Simple Contract, as well as a Specialty. Covenant may be brought for the payment of uncertain as well as certain sums of money, and for the non-performance of Covenants to do or not to do any other lawful thing. As we have seen, Covenant and Debt became concurrent remedies on all Sealed Instruments upon the Breach of which the Damages were liquithted.
11. Alabama: Jackson v. Waddill, 1 Stew. (Ala.) 579

(1828); Illinois: Johnston v. Salisbury, 61 III. 3113

(1871); Indiana: Wilson v, Hickson, 1 Blaekf.

(md.) 230 (1822); Missouri: Byrd v. Knighton, 7

Mo. 443 (1842); New Jersey: Scott cc Canover, 6

NIJ.L. 222 (1822); North Carolina: Taylor I’. ml-

son, 27 NC. 214 (1844).


For Breach of a Contract executed under the seals of both parties thereto only an Action of Debt or Cove­nant will lie. Van Huron Light & rower Co. v. In­habitants of Van Bin-en, 118 Me. 458, 109 A. S

(1920),


306

OFFENSIVE PLEADINGS

Ch. [4

Special Assumpsit and Covenant were in no instance concurrent, as the former action was the remedy for the Breach of an Un­sealed or Simple, Express Promise, whereas the latter action was the remedy for Breach of a Sealed Promise,12 along with Debt on a Specialty. In this connection, it should be remembered that Covenant, as a remedy on a Sealed Instrument, gave the plaintiff a remedy of a higher nature than Special As­sumpsit.’3


Covenant and Case in the Nature of Waste were concurrent remedies. Thus, in Kinly­side v. Thornton,’4 an Action on the Case in the Nature of Waste was permitted even though it was clear there was a Covenant not to commit waste. Chief Justice De Grey declared: “1 have no difficulty upon this question. The tenant for years Commits waste and delivers up the place wasted to the landlord. Had there been no deed of Covenant, the Action of Waste or Case in the Nature of Waste would have lain. Be­cause the landlord by the Special Covenant acquires a new remedy, does he therefore lose his old? “‘s
As the sole and exclusive remedy on Sealed Instruments for the payment of an uncertain sum of money, or for the performance or non-performance of other things, according to Browne,’6 it was generally required that the defendant have executed the Covenant under Seal; but it was not usually essential that the plaintiff should have executed it, as a Covenantor, having executed the con­tract, was chargeable on his Covenant, even
12~ 1 Chitty, Treatise on Pleading and Parties to Ac­tions, with Precedents and Forms, c. II, Of the Forms of Action, § 1, Assumpsit 117, 118 (16th Am. ed. by Perkins, Springfield, 1876).
13. Buistrode sc Gilburn, 2 Str. 1027, 93 Eng.Rep.

1011 (1736).



14. 2 Bl.W 1111, 96 Eng.Rep. 657 (1776).

15. Id. at 1113, 96 Eng.Rep. at 657 (1776).


16. Browne, A. Practical Treatise on Actions at Law, e, \~, Forms ot ActIons, 4, Covenant, 352 (PhIladel­phia, 1844).

though the Covenantee had not executed, as the assent of the latter to the contract may be implied from other circumstances,’~


FORM OF DECLARATION IN COVENANT

146. A Form of a Declaration in Covenant

is set out below.


DECLARATION IN COvENANT
IN ThE XrNG’s BENCH (or Common Pleas)
London, to wit (venue). C.D. was sum­moned to answer A.B. of a plea, that he keep with him the covenant made by the said C.D. with the said A.B., according to the form and effect of a certain indenture (or “deed­poll,” &c., according to fact) made between them (according to fact); and thereupon the said A.B., by his attorney, complains, for that whereas, &c. (state the deed and breaches, &c., and conclude thus): Where­fore the said A.B. saith that he is injured, and hath sustained damage to the amount of £ —, and therefore he brings his suit, &c. (no pledges).
1 Saunders, Pleading and Evidence, p. 458 (Philadelphia, 1831).
DECLARATION IN COVENANT—ESSEN­TIAL ALLEGATIONS: (1) IN GENERAL
147. The essential Allegations in the Dec­laration in the Action of Covenant are:

(I) The Execution of the Covenant



(II) The Promise

(III)

The Performance



Precedent

(IV) The Breach

(IT) The Damages

DECLARATION IN COVENANT—ESSEN­

TIAL ALLEGATIONS: (2) THE EXECU­

TION OF THE COVENANT


148. The Declaration in Covenant should state the deed or contract, or such portions as are essential to the cause of action, and allege that it was under Seal and was Delivered.

of Conditions

17. Id. at 353.

Sec. 151

ACTION OF COVENANT



307

DECLARATION IN COVENANT—ESSEN­

TIAL ALLEGATIONS: (3) THE



PROMISE
149. The Promise may be Alleged according to the Express Words or according to their Legal Operation and Effect.
DECLARATION IN COVENANT—ESSEN­TIAL ALLEGATIONS: (4) THE PER­FORMANCE OF CONDITIONS PRECE­DENT
150. The Consideration of the Specialty need not be stated, unless performance of it was a Condition Precedent. In the latter case it must be described, and performance Alleged or Non-performance Excused.
MOST of the rules to be observed in fram­ing a Declaration in Asswnpsit and Debt equally apply in framing the Declaration in Covenant. As in all cases of written instru­ments, the deed or contract may be set out in its Express Words, or stated according to its Legal Operation and Effect.’8 Only such portions need be mentioned as are essen­tial to the cause of action 19 and Covenants which are not expressly mentioned, but are Implied from those stated or from the gen­eral tenor of the instrument, should be set forth in the Declaration in the same manner as if they were expressed.2° The deed or contract should also be stated as being under Seal,2’ and its delivery should be alleged,22
IS. Delaware: Higgins v. Bogan, 4 liar. (Del.) 330

(1843); Massachusetts: Gates v. CaIdwell, 7 Mass.

68 (1810); Lent v. Padletord, 10 Mass. 230, 6 Am.

Dec. 119 (1813); New York: Scott v. Leiber, 2

wend. (N.Y.) 479 (1829); Texas: Sslinas v. Wright,

11 Tex. 572 (1854).


19. Sandforrl v. Halsey, 2 Denlo (N.Y.) 235 (1845).
See, also, Eddy v. Chace, 140 Mass. 471, 5 N.E. 306 (1886).
20. Grannis v. Clark, S Cow. (N.Y.) 36 (1827).
21. English: Moore v. Jones, 2 Lctflaym. 1536, 92

Eng.Rep. 496 (1728); Maryland: John W. Waldeek

Co. v. Emmart, 127 Md. 470, 96 A. 654 (1916); New

Jersey: Bilderback v. Pouner, 7 N.J.L. 64 (1823). \\There the Declaration did not allege that the Con­tract stied on was under Seal, the action was one of Special Assumpsit and not Covenant. Kerr, Evans

and profert made, or an excuse shown for the omission.23 As the seal dispenses with the necessity for a consideration, a statement of the consideration is generally unneces­sary; but, when the Performance of the Consideration constitutes a Condition Prece­dent to the right of the plaintiff to bring the action it should be stated as in Special Assumpsit, and performance alleged or ex­cused as in that action,24
DECLARATION IN COVENANT—ESSEN­TIAL ALLEGATIONS: (5) THE BREACH
151. The Breach of a Covenant may be stated According to its Substance, or in the Express Words of the Covenant. The Declara­tion must show the Covenant broken and a right of action in the plaintiff.
THE Breach in this action is the violation by the defendant of the terms of his Cove­nant; and the form in which it is to be as­signed may be by a general assignment, if enough will thereby appear on the face of the statement to show a violation and a
& Co. v. Cooperative Iniprovement Co., 120 Md, 469, 90 A. 708 (1916).
22. Perkins v. Reeds, S Mo. 33 (1843)~
23. English: Read v. Erookajan, 3 P.R. 251, 100 Eag. Rep. 564 (1789); Illinois: Dugger v. Oglesby, 99 Ill. 405 (1831).
24- English: Homer v. Ashford 3 Bing. 322, 130 Eng.Eep. 537 (1825); Kentucky: Harrison V. Tay­br, S A.K.Marsh. (Ky.) 168 (1820); Massachusetts:

Gardiner y. Corson, 15 Mass. 503 (1819); Pennsyl­

vania: Knox v. Rinehart, 9 Serg. & it. (Pa.) 45

(1822); Federal: Goodwin v. Lynn, 4 Wnsb.C.C. 714, Fed.Cas.No.5,553 (1827).


In the case of Dependent Covenants, performance or a readiness to perform must always be averred. Livingston v. Anderson, 30 ma. 117, 11 So, 270 (1892).
Where the covenant is definite in its terms and the act to be done by the plaintiff is purely a Matter of Fact, it is sufficient to aver performance in general terms, as in the case of payment of money. But where the Covenant Is indefinite, or in the alterna­tive, or Involves a Question of Law, the General Averment is Bet sufficient. Byrne v. MeNulty, 2 Gil. (Ill.) 424 (1822).

308


OFFENSIVE PLEADINGS

Ch. 14

resulting cause of action in the plaintiff.25 It may also be assigned According to the Substance,26 instead of the Letter, of the Cov­enant; and the Assignment may be in the Alternative, where it is necessary to thus conform to the Covenant itself. There may be Several Breaches in the same Declaration, and, if One be well Assigned, the Declaration cannot be held ill on General DemurrerY’


DECLARATION IN COVENANT—ESSEN­TIAL ALLEGATIONS: (6) THE

DAMAGES
152. The Damages, which must be the Legal and Natural Consequences of the Breach, are the Princip-al Object of the Action, and must be laid high enough to cover the actual de­mand.


THE amount recoverable in this action is the Damage Caused by the Breach, and the Damages may either depend upon the
25. Delaware: Handel v. President, etc. of Chesa­peake & D. Canal, 1 Har. (Del.) 151 (1832); iowa:

Camp v. Douglas, 10 Iowa 580 (1850).


Notice must be alleged if the Breach is mainly in the

knowledge of the plaintiff. Alabama: Huff v.

Campbell, I Stew. (Ala,) 543 (1828); Massachusetts:

Foster v. Woodward, 141 Mass. 160, 0 N.E. 853

(1886).
If the Action is for a Breach of Covenants of Seisin or Warranty, an eviction must be alleged, though no particular formality Is required.. Nebraska:

Cheney v. Straube. 35 Neb. 521, 53 NW. 470 (1802);

Georgia: Hamilton v. Lush, 88 Ga. 520, 15 SE. 10 (1892); New York: Bleddsoe’s Ex’r v. Wadsworth, 21 Wend. (N.Y.) 120 (1839); Pennsylvania: Knepper v- Kurts, 58 Pa. 480 (1868); Federal: Day v. Chisin, 10 Wheat. (U.S.) 449, 1 L.Ed. 303 (1825).
26, Alabama: Griffin v Reynolds, 17 Ala. 198 (1850)

New York: Potter v. Bacon, 2 Wend. (N.Y.) 583

(1829); Huyek v. Andrews, 113 N.Y. 51, 20 NE. 581,

3 L.PI.A. 789, 10 Am.St.Rep. 432 (1889).


While, in an Action for Breneh of a Covenant, the covenant may be set out in its own words, the P,reaeli must be assigned in accordance with its meaning. Illinois: Chicago, Isi. & St. P. II. Co. v. Hoyt, 37 Ill.App. 64 (1890); Federal: Jobbins v. Kendall Mfg. Co., 196 Fed. 210 (U.S.D.C.R.I.).
27. Comyn, Digest, “Pleader” 2 V., 2, 3 (Dublin, 1793);

Alabama: Taylor v. Pope, a Ala. 190 (1840); Ken­tncky: Mccoy v. HIll, 2 Litt. (Ky.) 374 (1822); Thome v. flaky, 1 Dana (Ky.) 268 (1833).

opinion of the Jury, in which case they are said to be unliquidated, or they may be a specific sum stipulated for in the contract.e8 In either case the amount alleged must be large enough to cover the sum intended to be proved; for the plaintiff cannot recover more than his Declaration calls for.
STATUS UNDER MODERN CODES, PRACTICE ACTS, AND RULES

OF COURT
153. In a majority of the states the effective­ness of the seal has been abolished or sub­stantially modified by Statute.

in a jurisdiction where the seal has retained its effectiveness, and the Code has been adopted, there is some authority to the effect that where the action of Covenant was the proper action at Common Law, the allegations in an action under the Code must be such as would have supported the Common Law action of Covenant.


IN a majority of the states, the effective­ness of the private seal has been abolished or substantially modified by Statute.29 The change in effectiveness of the seal raises questions in pleading which, although not related to the Codes, are nevertheless of considerable importance in Modern Practice, For example, in Rondot v. Rogers)5° the Michigan Court held that the purpose of a Michigan Statute which provided that no deed was to be deemed invalid for want of a seal, “was to permit parties intending to make a deed or specialty to have the writing signed by them, though without a seal, treat­ed in law as a deed or specialty; and there­fore that covenant might be maintained thereon.”
22. Alabama: Clark v. Zeigler, 79 Ala. 346 (18851;

Georgia: Amos v. Cosby, 74 Ga. 793 (1885); Penn­sylvania: Provident Life & Trust Co. v. Fiss, 147

Pa. 232, 23 A. 560 (1892); Texas: Brown V. Hearon,

66 Tex. 63, 17 S.W. 395 (1856); White v. Street,

67 Tex. 177, 2 SW. 529 (1886).
29. See Patterson, Goble and Jones, cases on Con­tracts, C 3, Formalities in Contracting, 44-I---447 (Brooklyn 1957), for discussion of the Seal antl Statutes abolishing or modifying its effectiveness.
30. 39 Mich.CC.A. 462, 99 F. 202 (1900).

Sec. 153


ACTION OF COVENANT

0

On the other hand, in Allied Amusement


v. Glover,,” the Hawaii Court) after pointing out that seals had lost their significance in Hawaii, concluded as follows: “In this juris­diction, therefore, assumpsit rather than covenant lies for recovery of damages in breach of a contract whether it be under or not under seal.”
In a jurisdiction where the seal has re­tained its effectiveness, and the Code has been adopted, there is some authority to the effect that where the action of Covenant was the proper action at Common Law, the allegations in an action under the Code must be such as would have supported the Com­mon Law Action of Covenant. The New Jersey Court addressed itself to this point in Katin v. Crispe7,~2 as follows: “At com­mon law, a defendant having entered into an agreement in writing under seal, a breach thereof and resulting damages gave rise to an action styled ‘covenant’. It was the pe­
3’. 40 Hawaii 92, 95 (1958).
22 N.J.Misc. 394, 39 A.2d 1S~, 184 (1944).

culiar remedy for the non-performance of a contract under seal, where the damages were unliquidated and depended in amount upon the opinion of the jury. Chitty on Pleading, page 118.


“The plaintiffs contend that the format of their action is proper. Under the formu­lating system of pleading at common law, their action would be styled ‘covenant’. Prior to the Practice Act of 1912, two princi­pal categories of actions were provided in personal actions, 1, actions upon contract, and 2, actions ex delicto. The act of the Legislature in 1912, Chapter 231, paragraph 3, N.J.S.A. 2:27—7, re-styled the names of actions at law by providing that there should be one form of civil actions in the courts of law, denominated ‘action at law’. The change abrogated the names of the former classifications, but it did not destroy the value of classification nor eliminate the averments requisite to a good count or the facts to be proved in support of them. Ward

v. Huff, SupCt.1919, 94 N.J.L. 81, 109 A.

287.”

Sec.


CHAPTER 15
THE ACTION OF ACCOUNT1

154. Scope of the Action.

155. Account—Distinguished From and Concurrent with Other Actions.

156. Form of Declaration in Account.

157. Declaration in Account or Account Render—Essential Allegations:

(1) In General.

15S. Declaration in Account or Account Render—Essential Allegations:

(2) A Statement of the Facts Showing a Legal Relation Between

Plaintiff and Defendant Which Gives Rise to the Right to an

Accounting.

159. Declaration in Account or Account Bender—Essential Allegations:

(3) The Refusal to Account or the Breach.

160. Declaration in Account or Account Render—Essential Allegations:

(4) The Damages.



161. Status Under Modern Codes, Practice Acts and Rules of Court.

SCOPE OF THE ACTION
154. The action of account lies where one has received goods or money for another in a fiduciary capacity, to ascertain and recover the balance due. It can only be maintained where there is such a relationship between the par­ties, as to raise an obligation to account, and where the amount due is uncertain and Un-liquidated.
WHERE one has received property belong­ing to another, to invest or use on his behalf,
1. In general, on the origin, history and present sig­nificance of the Action of Account, see:
Treatises: 2 Polk’ck and Maitland, }Jistory of English Law, c. V, Action of Account, 219, 345 (cam­bridge. 1895); Martin, Civil Procedure at Common Law, e. II, Art. Iv, Account, §~ 61—67, 62—65 (St. Paul, 1905); 3 Street, Foundations of Legal Liabil­ity, c. IX, Action of Account. 99 (Northport, 1900); Langdell, A Brief Survey of Equity Jurisdiction, e. IV, 75, 83—85 (Cambridge, 1908); Ames, Lectures on Legal History, Lecture XI, 116 (Cambridge, 1913); Bar-hour, History of Contract in Early English Equity, c. II, Account, 16 (4 Oxford Studies in So­cial and Legal history, Oxford, 1914); Plucknett, Statutes and Their Interpretation In the First Half of the Fourteenth Century, c, II, Peculiarity of Ac­count, 134 (Cambridge, 1932); Shlpman, Handbook of Common-Law Pleading, e. VII, The Action of Ac-

the obligation arises by operation of law to account for what becomes of it to the Owner.2 It is an obligation like debt arising


count, 14-4 (3rd ed. by Ballantine, St. Paul, 1923); Jackson, The History of Quasi-Contract Law in EngJish Law, Pt. I, § 15, The Nature of the Action of Account, 32 (Cambridge, 1936); Fifoot, History and Sources of the Common Law, c. 12, Account 268 (Lonaon,’1949).
Articles: Ames, The History of Parol Contracts Pri­or to Assumpsit, 5 HarvL.Bov. 257 (18D5), reprinted in 3 Select Essays in Anglo-American Legal his­tory, Eli. II, Pt. V, No. 60, 320 (Boston 1909); Stein, Liability for Loss 0f Public Funds, 1 MicluL.flev, 557 (1903); Henning, History of the Beneficiary’s Action in Assumpsit, 3 Select Essays in Anglo-American Legal History, c. VI, Contracts, 338, 344— 360 (Boston, 1909); Belsheim, The Old Action of Account, 45 Harv.LBev. 406 (1932).
Comment: Hinton, Pleading—An Action of Account In a Code State, 22 Ill.L.Itcv. 660 (1928).
2. Thouron v. Paul, 6 Whart. (Pa.) 615 (1841).
See, also, Langdell, A Brief Survey of Equity Juris­diction, 2 Harv.L.Rev. 241, 242—253 (1889); Honing, History of the Beneficiary’s Action in Assutnpsit, 43 Am.L.Eeg. (Ic.S.) 764—779 (1904), reprinted in 3 Se­lect Essays In Anglo-American Legal History 339 (Boston 1909); Id., 56 Am.L.Reg. (ItS-) 73—87 (1908):

1 Am. & Eng.Encyc.Law, title, Account Romlei’, 128

(1st Cd. Philadelphia, 1887).

310

Sec. 154



ACTION OF ACCOUNT

311

from the receipt of something. Agents charged with handling for profit money or goods, or collecting rents and profits from another’s land, such as Bailiffs, Partners, Factors, Commission Merchants, Executors, Trustees, and Guardians, come under a legal obligation to render an account of the capital (corpus) and proceeds which they receive on behalf of their principal. The Obligation to Account is thus one which the law im­poses independently of contract. It is not founded on promise, but on the existence of a relationship of fact, namely, the being intrusted with the handling of property be­longing to another.


This obligation was recognized by the Ancient Common Law and was enforced by the Action of Account. Owing to defects of legal procedure, this action was later super­seded by the Action for Money Had and Re­ceived and by Bill in Equity. In the Action of Account the amount of money claimed is uncertain and unliquidated, but by an ac­counting before Auditors the balance due is ascertained and declared by the Judgment of the Court as a Debt.
Account is the proper form of action when one has received money or property for the use of another for which he should account to the latter,3 or where two persons are part­ners in a mercantile adventure.~ “It is said of this action that it is one of antiquity, and lies at Common Law against Guardians, Bailiffs, Receivers, and Mercantile Copart­
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