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DECLARATION IN ACCOUNT OR ACCOUNT

RENDER—ESSENTIAL ALLEGATIONS:

(4) THE DAMAGES
160. The amount claimed to be due should also he stated, but the recovery may exceed the sum alleged.
AS it is the object of the action to recover an uncertain sum or quantity claimed to be due, the Declaration should state the amount of the demand in the Form of a Claim for Damages, but this action is an exception to the rule as to the limitation of the re­covery by the amount of Damages laid. Here it is neither necessary to state the correct sum, nor to make the demand large enough to cover all that the proof may estab­lish, as it is the object of the action to as­certain what the Damages really are. The plaintiff may have Judgment for a greater sum then he alleges; 20 and where he states the value of chattels, and also lays Damages, he may obtain Judgment, when entitled to it, for the value and also for Damages, distin­guishing each.
STATUS UNDER MODERN CODES, PRACTICE ACTS AND RULES

OF COURT
161. While the Common-Law Action of Ac­count, in theory at least, has been abolished, the Conunon Law Liability to Account has not been abolished. It may, therefore, be enforced, in some states by a legal action to compel an accounting, in which case the Allegations are essentially the same as at Common Law; in others the liability may be enforced by a Bill for an Equitable Accounting. In general, this Mode of Procedure is favored, being more flexi­ble in character.


WHAT, then, in the light of the foregoing discussion, is the present status of the Action
28. Sturges V. Bush, 5 Day (Conn.) 452 (1813). But see, Kemp v. Merrill, 92 In.App. 46 (1900).
29. Gratz v. Phillips, 5 BIn. (Pa.) 564 (1813).

Sec. 161

ACTION OF ACCOUNT

317


of Account under Modern Codes, Practice Acts and Rules of Court?
In the Missouri case of Hughes v. Woos­icy,3° dec,ided after 1848, the plaintiff took an Appeal from an order sustaining a Demur­rer to a Declaration in an Action of Account. In reversing The Judgment the Court re­marked: “At the time of the beginning of this suit, this form of remedy was open to the plaintiff, and as he has seen proper to adopt it, we are bound to sustain him.” 3~
And in a subsequent case, Sandwich Mfg. Co. v. Bogie,32 decided in 1927, and under the Code, the Missouri Supreme Court held that the original claim was in the nature of an Action of Account, and an additional and different cause of action could not be subse­quently commenced, as, under the facts of the case, it would have resulted in a circum­vention of the Statute of Limitations. In re­ferring to the Action of Account, the Court declared:
“The relationship disclosed is that of agent and manager of a business—a branch office of the claimant at Kansas City. As such agent and manager Losee not only handled the moneys, notes, and accounts of the claim­ant, but merchandise which claimant carried
~o. 15 Mo. 339 (1852).
31. 15 Mo. 339. 340 (1852).
Zt. 317 Mo. 972, 298 S.W. 56 (1927).

for sale, and which Losee (working on a fixed salary) sold for claimant, and collected on such sales. The facts pleaded in the original claim bring it within thc old Common-Law Action of Account. This was, as said, a Common Law Action, so the referee is right in calling it an Action at Law. Our Practice Act has left us a more limited number of actions, and trials are had of each in the same Court, but the distinction between Common-Law and Equitable Actions are recognized as before. In fact, our several Practice Acts have placed accounts (the items of which are legal as distinguished from Equitable) on the law side of our Courts, there to be tried: (1) By the Court without a Jury, under named circumstances, (2) to be tried by a Jury, or (3) to be tried by a Referee.” ~


In short, then, despite the fact that the Code had abolished the Common-Law Action in favor of a single, formless form of action, the liability to account, as existing at Com­mon Law still remained enforceable under the Code and at Law. It followed, therefore, that the Essential Allegations as required at Common Law, were still required under the Code, perhaps without some of the detail and technicality which prevailed at Common Law.

33. Sandwich Mfg. Co. v. Bogie, 317 Mo. 972, 982, 298
S.W. 56, 60 (1927).

SCOPE OF THE ACTION
The Action of Assumpsit arose as one of the Action on the Case, upon analogy to various Rights of Action in Tort.
I. In general, on the Origin, History and Development of the Action of Special Assumpsit, see:
Treatises: Lawes, A Practical Treatise Ca Pleading, in Assumpsit (1st Am.Ed. by Joseph Story, Boston 1811); Lee, Precedents of Declarations in Assn.rnp­sit, Fully Adapted to Most Cases Occurring in Promissory Notes, on Bills of Exchange, Inland and Foreign, and also on Bankers’ Checks, &c. (London 1825); Fox, A Treatise on Simple con­tracts, and the Action of Assumpsit (London 1842):

Harty, Precedents of Declarations in Assumpsit and Debt, in the Superior Courts of Ireland, on Inland and Foreign Bills of Exchange, Promissory Notes, and Brokers’ Cheeks; With Forms of Particulars of Demand; Prepared in Conformity with the Cen. eral Rules of Hhlary Term, 1832, With Full Notes and Directions (Dublin 1842); Hare, The Law of Contracts, c. VII, Assompsit, 117-449; c. VIII, Trespass on the Case, 150, 169; e. X, Consideration, 199-226; c. XII, Antecedent Consideration, 241—261 (Boston 1887); Martin, Civil Procedure at Common Law, c. II, Art. III, §~ Ul—CO, Assunipsit, 49—Cl (St. Paul 1905); 3 Street, Foundations of Legal Liabil­ity, C. XIV, Action of Special Assumpsit, 172—181



Consideration became the test of whether there

was sufficient ground to enforce the promise.


Special Assumpsit lies for the recovery of Damages for the Breach of a Simple Contract,
(NOrthport 1906); Jenks, A Short History of Eng­lish Law, c. X, Simple Contracts, 135—141 (Boston 1912); Shipman, Handbook of Common Law Plead­ing, c. VHf, ~ 57—58, Special Assumpsit, 148-452 (3d ed. by Ballantine, St. Paul 1923); Morgan, The Study of Law, e. V, Assumpsit, 107—111 (2d ed,, Chi­cago, 1948); Plucknett, A Concise History of the

Common Law, Bk. II, Pt. IV, c. 3, Assumpsit to

Sladc’s Case, 637-446 (5th ed., London 195+3); Fifoot, History and Sources of the Common Law, c, XIV, Evolution of Assumpsit, 38O—340 (London 1949); Id., c, XV, The Subsequent Development of Assunlpsit, 359—371 (London 1949).
Articles: Salmond, The History of Contract, 3 L.Q,

Rev. 166 (1887); Ames, History of Assumpsit Pt. I,

2 Harv.L.Rev. 1 (1888); Keasbey, The Bight of a

Third Person to Sue Upon a Contract Made for his

Benefit, 8 Harv.Litev. 93 (1894); Ames, Parol Con­tracts Prior to Assumpsit, 8 Harv.L.Rev. 252 (1595);

Deiser, The Origin of Assumpslt, 25 flarv.L.Ecv.

428 (1912).
Annotation: Right of Third Person to Enforce Con­tract Between Others for His Benefit, 81 A.L.R. 1271 (1932).

CHAPTER 16

THE ACTION OF SPECIAL ASSUMPSIT1

Sec.
162. Scope of the Action.

163. Special Assumpait—Distinguished From and Concurrent With Other

Actions.


164. Form of Declaration in Special Assumpsit.

165. Declaration in Special Assumpsit—Essential Allegations:

(1) In General.

166. Declaration in Special Assumpsit—Essential Allegations:

(2) The Statement of the Making of the Contract and the Terms of

Promise on which the Action is Founded,

167. Declaration in Special Assumpsit—Essential Allegations:

(3) The Consideration.

168. Declaration in Special Assumpsit—Essential Allegations:

(4) The Performance by Plaintiff of All Conditions Precedent.

169, Declaration in Special Assumpsit—Essential Allegations:

(5) The Breach.

170. Declaration in Special Assumpsit—Essentiai Allegations:

(6) The Damages.

171. Status Under Modera Codes, Practice Acts and Rules of Court,

162.


Species

318

Sec. 162


ACTiON OF SPECIAL ASSUMPSIT

319

either Express or Implied in Fact. The term “Special Contract” is often used to denote an Express or Explicit Contract as contrasted with a Promise Implied in Law.

TIlE Action of Assumpsit, or Trespass on the Case in Assumpsit, is so called from the word “Assumpsit”, which means that he undertook or promised, which, when the Pleadings were in Latin, was inserted in the Declaration as descriptive of the defend­ant’s undertaking.2 It is a proper Remedy for the Breach of any Simple or Unsealed Contract, whether the Contract is Verbal or Written, or whether it is for the payment of money, or for the performance of some other act, as to render services or deliver goods, or for the forbearance to do some act.3 In no case will the action lie unless there has been an actual contract or promise, or unless the law will imply one; for a prom­ise either given in fact or implied by law is essential.4
The Action of Covenant hardened before it could be extended to unwritten agreements, even when made upon valuable considera­tion, and until near the end of the Fifteenth Century such pacts found no remedy.
2. 1 Chitty, Treatise on Pleading and Parties to Ac­tions with Precedents and Forms, c. II, Of the Forms of Action lfl (SprIngfield, 1833); IllinoIs:

Board of Highway Comr’s v. City of Bloomington. 253 III. 164, 97 N.E. 280, Am.Cas.1913A, 471, 477 note (1913); New Jersey: Clark v. Van Cleef, 75 N. J.Eq. 152, 71 Ati. 260 (1908).


3. English: Rudder v, Price, 1 Bl.H. 551, 126 Eng. Rep. 316 (1791).
As to the nature of the action, see thc following cases:

Michigan: Ward v. Warner, S Mich. 508 (1860);

Farmers’ ~cat. Bank v. Fonda, 65 Mieh. 533, 32 NW.

664 (1887).


4. English: Rudder v. Price, 1 B1.H. 551, 126 Eng.

Rep. 316 (1791); Taylor v. Laird, 2~ L.J.Exeh. 329

(1856); MIchigan: Thornton v. Village of Sturgis,

38 Mieh. 630 (1878); New York: Bartholomew ‘v.

Jackson, 20 Johns. (N.Y.) 28, 11 Am.Dec. 237 (1522);

Tennessee: Stamper v. Temple, 6 Rumph. (Tenn.)

113, 44 Ani.Dcc, 296 (1M5)
Assumpsit lies only when damages are sought for the breach of a contract, express or implied. Casey v. Walker & Mosby, 122 Va. 465, 06 S.E. 434 (1918).

Prior to the Sixteenth Century the Law of Contracts rested on the foundations of Debt, Covenant and Account, but for the development of this branch of the law they proved entirely inadequate, It remained for the Action of Special Assumpsit to supply the Remedy for Breach of Simple Contracts, and its extension is largely the history of the Substantive Law of Contract. The theory was that when a man undertook by promise to do something and then did it improperly, or where he obtained something by a promise and thereafter broke his promise, Writs of Trespass on the Case were allowed for the wrong done.5


The Action of Assumpsit, in its broadest sense, was thus developed from the analogies of Actions Ecr Delicto rather than the anal­ogy of Covenant, Debt, or any Action Ex Contractu. What the particular analogies were that the Courts strained to transform a tort remedy into a contract remedy in the law of obligations hardly con~rns us here. Whether Special Assurnpsit is descend­ed from an Action of Trespass on the Case for Negligent Misfeasance in doing a thing which the defendant had undertaken to do (which is in one aspect an action on the promise), or whether Assumpsit has de­scended from an Action on the Case .in the Nature of Deceit for Nonfeasance to Recover Money Paid on the Faith of a Promise, or Damages caused by the deceitful artifice, whether from one or both of these, it con­cerns us principally to know the result at
5. For Assumpait as Trespass on the Case upon a promise, see the following: Illinois: Carter v. White, 32 III. 509 (1863); Rhode Island: Bagaglio v. Paolino, 35 RI. 171, 85 Atl. 1048, 44 LEA. (N.S.) 80 (1913), holding that Trespass on the Case In­cludes both Assumpsit and Case for torts. Federal:

Carrol v. Green, 92 U.s. 509, 23 LEd. 738 (1875); 3 Street, Foundations of Legal Liabilities, c. XIV, The Action of Special Assumpsit, 178 (Northport 1906).


An Action on the Case includes Assumpsit as well as an action in form ex deieto. Wadleigh v. Katalidin Pulp & Paper Co., 116 Me. 107, 100 AtI. 150 (1917).

& Reppy Com.Law P1d5 H.B.—12

220


OFFENSIVE PLEADINGS

Ch. 16

which the Courts slowly and painfully ar­rived,6—a remedy to enforce contractual duties. It is interesting to compare the evolution of Assumpsit with that of Detinue, which started with a Contractual Theory, and, as it developed, invaded the Field of Tort, although it still retained some of its Contractual characteristics.


The Action of Covenant enforced prom­ises made in writing under Seal simply as promises, expressed in such form as to be binding. The Action of Assumpsit as final­ly developed enforces promises, not because they are promises, but only when they are based on Consideration. The Action of Debt on Simple Contract enforced a duty to pay for an equivalent already received. But in the Simple Contract the obligation is based on the promise, not upon receipt of the quid pro quo, and it is now immaterial whether or not one side of the Consideration has been executed. This Action of Assumpsit supplied the much-needed remedy for the re­covery of unliquidated Damages for the vie­lation of Express Contracts not under Seal. A great development took place by the ex­tension of this action, by means of an Implied or Fictitious Promise, to debts and to obliga­tions in the nature of debt arising from the receipt of benefits or value. This Form of the Remedy is distinguished as General As­sumpsit; the original Form of the Action upon an Actual Promise being called Special Ass umpsit.
4. Miller v. Ambrose, 3~ App.D.C. 75 (1910).
It nppenrs that the Nonperfonnance of Promises be­came actionable in the first part of the Sixteenth Century, or to be specific~ in 1505, when money or something of value was obtained by the Fromisor on the faith of his Promise. Accordingly, we find the Language of the Declaration in Special As­sumpsit to read: “Yet the said defendant, not re­garding his said promise, but contriving and fraud­ulently intending, craftily and subtly, to deceive and defraud the plaintiff,” etc. S Street, Foundations of Legal Liability, c. XIV, The Action of Special Assumpsit, 176 (Northport 1006). See, also, article by Holdsworth, The Modern Watery of the Doctrine of ConsIderation, 2 B.UL.Eev. 87, 91 (1922).

The Action of Special Assumpsit will never lie at Common Law on a Specialty. In such cases the proper remedy is Debt or Covenant, and not Assumpsit.’


Where a Bond or other higher security is taken in the place of a Simple Contract, the mere acceptance of the higher security ipso facto merges and extinguishes the lower

—that is, the Simple Contract—without re­gard to the intention of the parties, and Special Assumpsit will not lie. The action must, therefore, be Covenant or Debt on the higher security.8 In order that a merger may thus result, however, the subject-matter of the two securities must be identical, and the parties must be the same; and the higher


1- Special Assujupsit Is not sustainable upon a Spe­cialty. Merryinan v. Wheeler, 130 Md. 566, 101 AtI. 551 (1917).
For Breach of a Contract under the Seals of both

parties thereto only an Action of Debt or Covenant

will ue. Maine: Van Buren Light & Power Co. v.

Inhabitants of Van Buren, 118 Me. 458, 109 A. 3

(1920); Massachusetts: Richards v. ICillam, 10

Mass, 239 (1813); Codman v. Jenkins, 14 Mass. 93

(1817); Andrews v. Canender, 13 Pick. (Mass.) 484

(1833); PennsylvanIa: Barley v. Parry, 18 Pa. 44

(1851); Hamilton v. Hart. 109 Pa. 629 (1885);

January v. Goodman, 1 Dali. (Pa.) 208, 1 LEd. 103

1787;
Where a Judgment is a Specialty, Debt or Seire Pad-as, and not Assunipsit, is the proper remedy,
In many states, by Statute, the remedy by Assumpsit

was extended to contracts under Seal, and other

Specialties. Illinois: Martin v. Murphy, 36 Ill.App.

283 (1885); City of Shawneetown ‘v. Baker, 85 III.

563 (1877); Dean v. Walker, 107 III. 540, 47 Am.

Rep. 467 (1883); Michigan: Goodrich v. Leland, 15

Micb. 110 (1809).
8. English: Aeton v. Symon, Cro.Car. 415, 79 Eng.

Rep. 900 (1035); Price v. Moulton, 10 CE. 561, 138

Eng,Rep. 222 (1851); Illinois: Wann v. MeNulty, 2

Gil. (Ill.) 3~5, 43 Ain.Dec. 58 (1845); Maryland:

Reefer v. Zimmerman, 22 Md. 274 (1864); Moale V.

Rollins, 11 Gin. & J. (Md.) 11, 33 Am.Dec. 684 (1839);

Massachusetts: Eanorgee v. flovey, 5 Mass. 11, 4

Am.Dec. 17 (1809); Michigan: Martin v. Hainlin,

18 Mich. 354, 100 Am.Dec. 181 (1860); New Hamp­shire: Mecriflls v. How, 3 Nil. 348 (1826); New

York; Butler v. Miller, 1 DeMo (N.Y.) 407 (1826);

Hammond v, HoppIng, 13 Wend. (N.Y.) 505 (1835);

Pennsylvania: Jones v. Johnson, 3 Watts & S. (Pa.)

270~ 38 Am.Dec. 700 (1842).

Sec. 163


ACTION OF SPECIAL ASSUMPSIT

321


security must be taken in the place of the lower, and not merely as collateral security.0 There is no merger if the higher security is void, as where a usurious bond is taken for money previously lent without usury, and on a parol promise to repay it, or where an infant gives a bond with a penalty for necessaries furnished him. In such cases As­sumpsit may be brought, the higher security being inoperative.10
SPECIAL ASSUMPSIT—DISTINGUISHED

FROM AND CONCURRENT WITH

OTHER ACTIONS


163. Special Assumpsit, which lies for the breach of an Unsealed Contract, and Covenant, which lies for the Breach of a Sealed Contract, are Mutually Exclusive Remedies. Debt, which lies on a Simple (Executed) Contract is not to be confused with Special Assunipsit which lies for the Breach of an Express Promise, or of a Simple Contract in the Modern Sense. And Special Assumpsit is distinguishable from Trespass on the Case in that the former lies for the Breach of a Promise, whereas the latter lies for Tortious Misconduct resulting in an injury, hut they are sometimes concurrent rem­edies.
In General

SPECIAL Assumpsit, having been differ­entiated from its immediate ancestor, Case for Misfeasance and Case for Nonfeasance, and having in consequence achieved status as an Action Ex Contractu, became the rec­ognized Form of Action to recover Damages for the Breach of a Modern Simple Contract. As such, it is clearly distinguished from Coy­


S. English: Holmes v. Bell, 8 Man. & G. 213, 133 Bug.

Rep. 1120 (1841); Hooper’s Case, 2 Leon. 110, 74

Eng.Rep. 399 (1587); Massachusetts: Banorgee v.

Bovey, 5 Mass. 11, 4 Am.Dee. 17 (1809); Michigan:

Doty v. Martin, 32 Mich. 462 (1875); New York:

Butler v, Miller, 1 Denio (N.Y.) 407 (1845); Day v.

Leal, 14 Johns. (N.Y.) 404 (1817); Witbeek v. Waine,

16 N.Y. 532 (1858).


10. English: Scurfield v. Gowland, 6 East 241, 102
Eng.Rcp. 1279 (1805); Ayliff v. Arehdale, cro.EIiz.

920, 78 Eng.flep. 1142 (1603); New Hampshire:

Mc(Jrillis v. How, S N.H. 348 (1826); New York:

Hammond v. HoppIng, 13 Wend. (N.Y.) 505 (1835).

enant, which lies only upon a Sealed Con­tract, whereas Special Assumpsit lies upon an Unsealed Contract. The two actions, therefore, are regarded as mutually exclu­sive. The action is distinguished from Debt, which lies for the recovery of a Specific Sum of money conceived of as belonging to the plaintiff, whereas Special Assump­sit lies to recover Damages for Breach of a Promise. While the actions are sometimes concurrent, each proceeds upon its own pecu­liar theory. Assumpsit is grounded upon a right of the plaintiff to be indemnified for some detriment incurred as a result of the defendant’s wrongful Breach, whereas Debt is based upon a right of the plaintiff to re­cover a sum certain to which he is entitled as a result of some quid pro quo supplied by him to the defendant.
Special Assumpsit as a Concurrent Remedy with Trespass on the Case for Tort ious Misconduct
AND, of course, Special Assumpsit, while differing from its Tort Ancestor, Trespass on the Case, in that it lies for the breach of a duty imposed by the voluntary act of the parties in executing a contract, whereas in Case, the action is to compensate for a wrong independent of any contract obligation, none­theless sometimes may be concurrent with Case, as, for example, where one purchases a railway ticket from one point to another and then suffers an injury; he may, if he so de­sires sue in Special Assumpsit for breach o~ the contract, or he may elect” to waive

right under the contract and sue in Trespass on the Case for the violation of a duty caus­


11. Although an evicted tenant may sue on the cove­nant for quiet enjoyment, he may elect to treat the eviction by the landlord as an unlawful invasion of his rights and sue in Tort. Mitsak-os v. Morrill, 237 Mass. 29, 129 N.E. 294 (1924).
An Action in Tort may be maintained for the vioL tioa of a duty flowing from relations between par. ties created by Contract Commercial City Bank v. Mitchell, 25 Ga.App. 837, 105 SE. 57 (1020).

32Z


OEPENSIVE PLEADINGS

Ch. 16

I

ing him injury. - The rule applicable to car­riers is also applicable to bailees.


Where property is placed in a person’s cus­tody under a contract by which he is to re­pair the same, or carry it, or do any other act in relation to it, anal it is lost or injured by reason of his negligence, there is a Breach of Contract as well as a Tort, and the other party may bring Assumpsit instead of Case.’2
In Assumpsit for the value of a boiler placed in the defendants’ custody for repairs, and destroyed by reason of their negligence, it was contended that the action should have been in Case, but the action was proper. “If there had been no previous contract re­lation between the parties,” it was said, “Damages occasioned by the negligence of the defendants could have been recovered only in an Action on the Case; but the fact that the boiler came into the possession of the defendants by reason of, or as incidental to, the contract for repairs to be made upon it, imposed the duty upon the defendants to exercise ordinary care for the safety and preservation of their customer’s property. By receiving the boiler into their possession for the purpose of repairing, they must be held to have subjected themselves to an in­dertaking, implied from the nature of the express contract for repairs, to do what in good faith and common fairness ought to be done for the protection of their customer’s goods. If they have failed in the perform­ance of the duty imposed by this implied undertaking, an Action of Assumpsit will lie. At the same time it is true that if the failure involves a tort, such as the willful destruc­tion of his customer’s goods, or a conversion
it. Maine: Inhabitants of Milford v. Bangor By. &

Electric Co., 104 Me, 233, 71 A. 759, 30 LEA.

(N.S.~ 531 (1908}, holding that Case for Breach of a

Duty arising out of an Express or Implied Contract

Is concurrent with Assumpsit. Oklahoma: Hobbs v.

Smith, 27 Okia. 880, 115 P. 347, 34 LBS. (MS.) 097

(1911); Vermont: Lawson v. Crane & Hall, 83 vt.

115. 74 A. 641 (1909).

of them to his own use, he may be proceeded against, at the election of his customer, for the Tort and in an Action cx delicto.” ‘~ There are many other cases where a party may at his election sue either in Assumpsit or in Case.’4 Thus Assumpsit and Case are concurrent remedies for Breach of Warranty in a sale of goods.15

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