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164. This section contains an example of a Declaration in the Action of Special As­sumpsit.
FOR that whereas heretofore, to wit, on, &c. at, &c. the said LB. at the special in­stance and request of the said C.D. bargained with the said C.D. to buy of him the said C.D. and the said CD. then and there sold to the said A.B. a large quantity, to wit, ten loads
13. Zell v. Dunkle, 156 Pa. 353, 27 A. 88 (1803). See, also, B. B. Ford & Co. v. Atlnntic Compress Co., 13$ Ca. 406, 75 SE. 609, Ann.Cas.1913D, 226, 229, note (1912), holding that a Tort arising out of a Breach of the Bailec’s Duty imposed by relation or by Ex­press Contract may be waived by the Sailor and Assumpsit maintained.
14. While negligence, considered merely as a Tort, is a wrong Independent of Contract, it may also be a Breach of Contract, If the Contract ttselt calls for care. Alabama: Western Union Telegraph Co. V. Bowen, 16 Ala.App. 253, 76 So. 985 (1917); New

York: Lord Electric Co. v. Barber Asphatt Paving Co., 226 N.Y. 427, 123 N.E. 75€ (1919), reversing the ~ndgment in 180 App.Div. 887, 166 N.Y.S. 1102 (1917).

When the law imposes a duty arising froni the rela­tion rather than the Contract, and there is a Breach of Duty, the aggrieved party may sue in Trespass on the Case, but if there be no legal duty, except that arising fràm the Contract, there can be no Elec­tion, and the party must rely upon the agreement alone. Walscr i’. Moran, 42 Nev. 111, 173 P. 1149 (1918).
15. North Carolina: Lassiter v. Ward, 33 N.e. 443 (1850). Vermont: Caldbeek V. Simanton, 82 Vt. 69, 71 A. 881, 20 LEA. (N.S.) 844 (19®). See, also, Wil­listen, Contracts, e. XLI, Fraud, 1505 (New Yorlc 1020); RepresentatIon and Warranty in Sales, Ecu­but v. Buckleton, 27 Llarv.L.Rev. 1 (1913).

Sec. 166



of wheat at the rate or price of £ for each and every load thereof, to be deliv­ered by the said C.D. to the said A.B. in a week then next following, at , and to be paid for by the said A.B. to the said C. D. on tile delivery thereof as aforesaid; and in consideration thereof, and that the said A. B. at the like special, &c. had then and there undertaken and faithfully promised the said C.D. to accept and receive the said wheat, and to pay him for the same at the rate or price aforesaid; he the said C.D. undertook, &c. to deliver the said wheat to him the said A.B. as aforesaid; and although the said time for the delivery of the said wheat, as aforesaid, hath long since elapsed, and the said A.B. hath always been ready and willing to accept and receive the said wheat, and to pay for the same at the rate or price afore­said, to wit, at, &c. aforesaid; yet the said C.D. not regarding, &c. but contriving, &c. to deceive and defraud said A.B. in this be­half, did not nor would within the time aforesaid, or at any time afterwards, deliver the said wheat, or any part thereof for the said A.B. at, &c. aforesaid, or elsewhere, but wholly neglected and refused so to do, whereby the said A.B. hath lost and been de­prived of divers great gains and profits, which might and otherwise would have aris­en and accrued to him from the delivery of the said wheat to him the said A.B. as afore­said, to wit, at, &c., aforesaid—[Add one or more special counts, varying the statement

—and at least one count like that in 1 East. 203—and an account stated.]

2 CHIITY, Pleading, p. 105 (Phil. 1819).



165. The Essential Allegations of the Dec­laration in Special Assumpsit are:

(I) The Statement of the making of the

contract and the terms of promise on which the action is founded.

(II) The Consideration.

(III) The Performance by plaintiff of all

conditions precedent.

(IV) The Breach.

(V) The Damages.





166. The Statement of the making of the contract may consist of an Allegation of the Consideration and Promise, and, where neces­sary, an Inducement, setting forth the Circum­stances under which the Contract was execut­ed.
The Promise may be set forth in the Dec­laration Verbatim or according to its Legal Effect,
THE statement of the making of the con­tract is the first important requisite in show­ing the cause of action in Special Assumpsit. It may include either a mere Allegation of the Consideration and Promise, or, where that is not sufficient to render intelligible the Count which follows, an explanatory Al­legation or Inducement may be necessary. In any case, it must be a clear and particular statement of every fact which is necessary, in the particular case, both to show what contract was actually made, and to plainly indicate such of its terms, beneficial to the plaintiff, as constitute the part for the fail­ure of which he sues.1~
Explanatory Inducement

WHERE the mere Allegation of the Con­sideration and the Promise will not alone

~O. English: Cotterill v, Cuff, 4 Taunt. 285, 128

Eng.Rep. 338 (1812); Bristow v. Wright, 2 Doug.

667, 09 Eng.Rep. 421 (1781); Maryland: Ferguson v.

Tucker, 2 Ear. & C. (Md.) 183 (1807); Massachusetts:

Stearnes v. Barrett, 1 Pick. (Mass.) 443, 11 Am.Dec.

223 (1823); New Hampshire: Favor v. Philbriek, 7

N.E. 326 (1834); Smith v. Boston, C. & M. B. Co., 36

NIl. 458 (1858); Smith V. Webster, 48 N.H. 142




Cli. 16

show the Contract in an intelligible manner, it has been customary to set forth, in the nature of a preamble, the Circumstances un­der which the Contract was made.’-’ This explanatory statement is termed an “Induce­ment.” The extent to which it is carried depends upon the necessity for explanatory matter in the particular case.

Thus, in Special Assumpsit on an award, the existing difficulties between the parties, resulting in the submission to arbitration, are concisely stated by Way of Inducement, as that “certain differences had existed and were depending” ; ‘~ and, on a Contract to pay money upon a Consideration of Forbear­ance, the Declaration should begin by stat­ing with brevity the existence of the debt for­borne, and from whom it is due.19 So, in a Declaration against an attorney for negli­gence, or a carrier or innkeeper for loss of goods, it is proper to show By Way of In­ducement that the defendant followed the occupation in respect of which the plaintiff employed him. Unless such an Allegation is contained somewhere in the Declaration, the defendant cannot be charged thereon for the breach of a duty which results only from the particular character which he held, and in reference to which he was retained.20
The Promise

THE Declaration must in all cases show that a Promise has been made, either by expressly averring that the defendant “promised,” or by other equivalent words.2

17. Johnson v. Clark, 5 Blaekf. (XmL) 564 (1834).
12. 1 Cliitty, On Pleading, e. IV, Of the Praccipe and Declaration 318 (Springfield 1833).
19. Ibid.
20. Dartuall v. Howard, 4 Earn. & C. 34-5, 107 Bug. Rep. 1088 (1825).
21. 1 Chitty, On Pleading, e. XV, Of the Praeeipe and Declaration, 321) (Springfield 1533); Illinois: North v. Klzer, 72 Ill. 172 (1874); Massachusetts: Cooper

v. Landen, 102 Mass. 58 (1S€Q) West Virginia:

Waid v. Dixon, 55 W.Va. 191, 46 SE. 918 (1904);

Formal words need not be used if it suffi­ciently appear from the whole Declaration That a Promise has actually been made.22 The Promise must be stated with certainty and precision, and any material Variance be­tween Allegations and the Proof will be fa­tal. It may be set forth in terms or accord­ing to its Legal Effect.23 Only such parts need be set out as show the entire act re­quired to be done by the defendant.24

Wheeling Mold & Foundry Co. v. Wheeling Steel & Iron Co., 62 W.Va. 288, 57 S.F. 826 (1907).
An Express Promise ought to be laid in the Declara­tion. Bannister v. Victoria Coal & Coke Co., 63 W. Va. 502, 61 S.F. 338 (1008).
22. English: Elsee v, Catward, 5 TB. 145, 101 Fag.

Rep, 82 (1793); Illinois: MeGinnity v. Laguerenne,

5 Gil. (Ill,) 101 (1848); Illassachusetts: Avery v.

Inhabitants of Tyringham, 3 Mass. 160, 3 Am.Dee.

105 (1807;; New York-: Booth v. Farmers’ & 31.

NatI. Bank of Rochester, 1 Thomp. & C. (N.Y.) 49

(1573); South Carolina: Wingo v. Brown, 12 Rich.

(SC.) 279 (1859); Virginia: Sexton v. Holmes, a

Munf. (Va.) 569 (1813); Peasley v. Boatwrigbt, 2

Leigh (Va.) 198 (1830); Cooke v. Simms, 2 Call.

(Va.) 39 (1799).
Thus, in Assurnpsit on a Bill of Exchange, where the Declaration showed the defendant’s liability on the Bin as the drawer, but omitted to add that he had Promised to Pay, the Court refused to Arrest the Judgment for this omission, and held that the Count was a Count in Assumpsit, because the drawing of the Bill was a Promise. Starke v, Cheeseman, 1 Ld.Raym. 538, 01 Eng.Xiep. 1259 (1699).
And the same doctrine has been extended to a Prom­issory Note. English: Wegersloffe V. Keene, 1 Str.

224, 08 Eng.Ilep. 480 (1710); Mountforci v. Horton,

2 Bbs. & P. (N.R.) 62, 127 Eng.Rep. 545 (1805);

Massachusetts: Dole v. Weeks, 4 Mass. 451 (ISOS).

23. English: Stroud v. Gerrard, 1 Salk. 8, 91 Eng. lIep. 7 (1707); Illinois: Smith v. Webb, 16 ni. 105 (1854); Mutual Ace. Ass’n of the Northwest v. Tuggle, 138 111. 428, 28 N.E. 1066 (1891); Massa­chusetts: Lent v. Padelford, 10 Mass. 230, 6 Am.Dee. 119 (1813); Texas: Salinas v. wright, 11 Tex. 572 (1854).
21. English: Cotterill v. Cuff, 4 Taunt, 285, 128 Lag. Rep. 338 (1812); Miles v. Sheward, S East 7, 103 Eng.Itep. 246 (1806); Massachusetts: Couch v. In­gersoll, 2 Pick. (Mass,) 292 (1824); Morse v. SMi~­man, 106 Mass. 432 (1871); New Hampshire: lien­lett y. Moore, 21 NIX. 336 (1850).

Sec. 167



It is not necessary to state that the Prom­ise was in writing, even when a writing is required by statute,23 for the writing is not the Contract, but merely evidence of it. The Declaration should, however, specify the parties by and to whom the Promise was made,26 the time when it was made,2’ and sometimes the place. And if the Promise is alternative, or contains limitations or re­strictions of any kind qualifying the man­ner of performance, or the liability of the de­fendant to perform, the Declaration must correspond in every particular, or there will be a fatal misdescription.28 “All those parts
23. English: 3ioore v. Earl of Plymouth, 3 Barn. &

Aid. 66, 106 Eng.Rep. 587 (1819); Alabama: Flick

V. Brigg, 6 Ala. 687 (1844); Brown v. Barnes, 0

Ala. 694 (1844); Kentucky: Baker v. Jameson, 2

J.J.Marsh (ICy.) 547 (1829); New Hampshire:

Walker s-, Richards, 30 N.H. 259 (1850); New York:

Nelson v. Dubois, 13 Johns. (N.Y.) 17? (1836); Miller

V. Drake, I Caines (N.Y.) 45 (1803); South Caro­lina: Wallis v. Frazier, 2 Nott & 51cC. (S.C.) 180

16. English; Jones v. Owen, 5 Adol. & F. 222, 111 Eng.Ilep. 1149 (1836); Price v. Easton, 4 Barn. & Adol. 433, 110 Eng.Rep. 518 (1823); Illinois: Belton v. Fisher, 44 Ill. 32 (1867).
A misdeseription of the parties may be fatal. Eng­lish: Jell v. Douglas, 4 Barn. & Aid. 374, 106 Eng.

Rep. 074 (1821). Connecticut: Shepard v. Palmer, 6

Conn. 05 (1826); Illinois: Beltoa v. Fisher, 44 III.

32 (1867).

And a failure to state the names of the parties, or a misdescription, may be Aided by Verdict. 1 Chitty, On Pleading, c. IV, Of the Praeeipe and Declara­tion, 331 (Springfield, 1833); English: liolte v. Sharp, Cro.Car. 77, 79 Eng.Rep. 668 (1625); Ken­tucky: Elackwell v, Irvia’s Adm’rs, 4 Dana (ICy~) 187 (1836).
27. j Cbitty, On Pleading, c. IV Of the rra~dpe and

Declaration, 331 (Springfield 1833); English: Ring

V. Roxbrough, 2 C. & J. 418, 149 Eng.Itep, 177 (1832);

Pennsylvania: Stephens v. Graham, 7 Serg. & B.

(Pa.) 505, 10 Am.Dcc. 485 (1822).
But the exact time need not be proved. I Chitty, On Pleading, e. IV Of the Praeeipc and Declaration, 331 (Springfield 1833).
~. Connecticut: Curley v. Dean, 4 Conn. 265, 10 Am. Dee. 140 (1822); Massachusetts: Pay v. Goultling, 10 Pick. (Mass.) 122 (1820); Bridge v. Austin, 4 Mass. 115 (1808); New Hampshire: Smith v. Bos­ton, C. & 31. 11. Co., 36 N.H. 458 (1858); New York:

of the Contract, which are material for. the purpose of enabling the Court to form a just idea of what the Contract actually was, or which are necessary for the purpose of fur­nishing the Jury with a criterion in the as­sessment of Damages, should be stated with certainty and precision.” °°

It is in general sufficient to state those parts of the Contract of which a Breach is alleged, and it is not necessary or proper to set out in the Declaration other parts not qualifying or varying the material parts in question.3° The statement of additional mat­ter would be confusing prolixity. The per­fection of pleading consists in combining brevity with certainty and precision.
It is a general rule that the Contract must be stated correctly, and, if the evidence dif­fers from the statement, the whole founda­tion of the action fails, because the Contract must be proved as laid.3

167. The Declaration in Special Assumpsit should expressly state a Consideration for the
Steno v. Knowlton, 3 Wend. (N.Y.) 374 (1820); Low­er v. Winters, 7 C~. (N.Y.) 263 (1827); Butler v­Tucker, 24 Wend. (N.Y.) 447 (1840); Pennsylvania:

ltennyson v. Reifsnyder, 11 Pa.Co.~t.R. 157 (1837).

29. 1 Chitty, On Pleading, c. IV Of the Praeeipe and Declaration, 331 (Springfield, 1833).
30. Where the defendant Promises to do two or more things, the plaintiff is only required to set forth that particular part of the Contract which he al~ leges the defendant to have broken. It is so where there are several covenants in a deed; the plaintiff may sue for the Breach of any one alone. Smith v. Webster, 42 N.H. 142 (1868).
31. The averment of an absolute Contract to deliver
40 bags of wheat is not supported by Proof of an

optional one to deliver 40 or 50 bags, as the Con­tract must be declared upon in the Declaration ac­cording to the original terms of it. Penny v. Porter,

2 East 2, 102 Eng.Rep. 268 (1801).
The promise must be accurately alleged to avoid a variance. Illinois: Menifee v. Higgins, 57 Ill. 50 (1870); West Virginia: Davisson v. Ford, 23 W.Va. 617 (1884).


Promise and from such statement it must ap­pear that the Consideration alleged is legally sufficient, for otherwise it will be nudunt pac­

turn, and hence void.

Consideration in General

EXCEPT in cases of Bills of Exchange and Promissory Notes, and certain other Con­tracts that import a Consideration,~ it is al­ways necessary for the Declaration express­ly to state the Consideration for the Prom­ise, for, if no Consideration is alleged, the Promise will appear, from all that the Dec­laration shows, to be nudum pactuni, and therefore void.~~ And it is equally essential that the Consideration alleged shall appear to be legally sufficient to support the prom­ise.S1 It may sometimes happen, however, that, even where there is a sufficient Con­sideration, the Declaration, by omitting some averment in stating it, may make it

12. In these eases the Declaration must show on its face that the Contract is of such a natui’e as to im­port a Consideration. Nothing of this character can be left to be implied. I Chitty, On Pleading, c. IV Of the Praecipe and Declaration, 321 (6th Am. ed. Springfield 1833); Martin, Civil Procedure at Com­mon Law, e. II, Personal Actions En Contractu, 1 59, Declaration, 60 (St. Paul, 1905).
~ English: Jones s-. Ashburnhnnj, 4 East 455, 102

EngRep. 905 (1864); Dartnafl v. Howard, 4 Barn.

& C. 345, 107 EngItep, 1088 (1s25); Connecticut:

Curlcy v, Dean, 4 Cona. 265, 10 Am.Dee. 140 (1822):

Bailey v. Bussing, 29 Conn. I (1860); Illinois:

Hulrne v. flenwick, 16111.371(1851); Indiana: Pot­ter -v. Earnest, 45 lad. 410 (1874); Massachusetts:

Murdoek v. Calawell, S Allen (Mass.) 309 (1864);

New Harnpsbire: Bendea v. Manning, 2 N.H. 280

(1820); New Market Iron Foundry v. Harvey, 23

N.H. 406 (1851); New Yorl: Bailey v. Freeman,

4 Johns. (KY.) 280 (1809); Jerome v. Whitney,

7 Johns. (N.Y.) 321 (1811); Tennessee: Shelton v.

Bruce, 9 Yerg. (Tenu.) 24 (1836); Virginia: Fever­ley v. Holmes, 4 Muaf. (Va.) 95 (1813~ Moseley v.

Jones, 5 MuM. (Va.) 23 (1816); Vermont: Harding

V. Craigie, S Vt. 501 (1836).
34. Thus, if the Consideration for the defendant’s Promise was a Promise by the plaintiff, it must appear that the plaintiff’s Promise was binding on him when the defendant’s Promise was made; it must not In any case appear that the Consideration was illegal or past. Harding v. Cralgie, S Vt. 501 (1836),

appear insufficient, in which case the Dec­laration would be as defective as if the Con­sideration were defective in fact. It may not be aided by intendment. Care should therefore be taken, in stating the Consider­ation, to make it appear sufficient on the face of the Declaration.3~ It has also been laid down as a rule that the Consideration stated must be coextensive with the Prom­ise, in order to support it; but this is noth­ing more than saying that the Declaration must show a sufficient Consideration for the Particular Promise alleged.3°

If no Consideration is stated or that which is stated is clearly illegal or insufficient, the defendant may take advantage of the defect either by Demurrer, or by Motion In Arrest of Judgment, or Writ of Error; ~ but a de­
35. English: Dartnall v. Howard, 4 Barn. & C. 345,
107 Eng.llep. 1058 (1825); Vermont: Raiding v. Cralgie, 8 Vt 501 (1836).
Thus, where the plaintiff declared that a person, since deceased, was Indebted to him, and that after the death, in Consideration of the premises, “and that the plaintiff, at the defendant’s request, would give time for the payment of the debt,” the defendant Promised, etc., but did not state that there was any person in existence who was liable, in respect of assets or otherwise, to be sued by the plaintiff for the debt, and to whom he gave time—the Declara­tion was held bad on Demurrer; for no benefit was shown to move to tbe defendant, nor did it appear that any detriment had been sustained by the plaintiff, as it was not stated that anyone was liable to be sued by him, or that he had suspended the eaforeement of any right. Jones v. Ashburn­ham, 4 East 455, 102 Eng.Rep. 905 (1804).
36. Thus, where the plaintiff stated that the de­fendant was liable in the character of Executor to pay a certain debt, and then averred that in Con­sideration thereof he personally Promised to pay the debt, the Declaration was held bad on a Mo­tion in Arrest of Judgment, no additional Consider­ation being shown for his assuming personal liabil­ity. Raan v. Hughes, 7 TB. 350, note a, 101 Eng. Rep. 1014 (1707); See also, English: Mitehinson v. I-Ie~vson, 7 TIC 348, 101 Eng.Eep. 1013 (1797); Mary­land: Berry v. Harper, 4 Gill, & J. (Md.) 470 (1832).
37. English: Laing v. Fidgeon, 6 Taunt. 108, 128 EngRep. 974 (1815); Mitehinson v. Hewson, 7 TB-348, 101 Eng.Rep. 1013 (1797); Dartnall v. Howard, 4 Earn. & C. 345, 107 Eng,flep. 1088 (1523); Mich­


Ch. 16

Sec. 167



fective statement will be Aided by a Verdict for the plaintiff if it sufficiently appear, up­on a reasonable construction of the Declara­tion, that there was in fact a Consideration capable of supporting the Promise.38
In all cases the statement should be accu­rate, for the Consideration is essential to the Contract, and if it is misdescribed the Con­tract is misdescribed.39
The Consideration must be shown with certainty and particularity, Nothing that is essential can be left to implication and in­tendment. The degree of certainty will vary somewhat, according to the particular kind of the Consideration. An averment that the promise was made for a Valuable Considera­tion, without setting forth what it was, is insufficient upon General Demurrer.4°
Executed Considerations

CONSIDERATIONS are either Executed or Executory. An Executed Consideration consists of something done before or at the time of the Promise, at the request of the promisor. In these cases it must be shown by the Declaration that the Consideration arose at the Promisor’s (defendant’s) re­quest.41 It is said not to be necessary, in

Ksau: Kean v. Mitchell, 13 Mieh. 207 (1865); New

Hampstare: Benden v- Manning, 2 N.H. 280 (1821);

Vermont: Harding v- Oraigie, 8 Vt. 501 (1836); Vir­ginia: Winston’s Ex’r v. Pranciseo, 2 Wash. (Va.)

187 (1796).

St English: Ward v. HarrIs, 2 Bos, & P. 265, 126 Eng.flep. 1273 (1800); Pennsylvania: Shaw v. Red­mond, 11 Serg. & It. (Pa.) 2T (1824).
35. English: White v. Wilson, 2 Sos. & P. 116,

120 Eng.flep. 3188 (1800); Connecticut: Eulkley v. Landon, S Conn. 4434 (1820); New York: Lansing v. MeKillip, 3 Caines (N.Y.) 286 (1806); West Vir­ginia: James & Mitchell v. Adams, 18 W.Va. 245 (1880).

~ Kentucky: Wickliffe v. Hill, 4 Elbb. (Ky.) 269 (1815); Michigan: Kean v. Mitchell, 13 Mich. 207 (1565).
41. EnglIsh: Osborne v. Rogers, 1 Wms. Saund. 264, note 1, 85 Eng.Rep, 318, note 1 (1670); Hayes v. Warren, 2 Str. 933, 93 Eng.Rep. 950 (1731); Cali­fornia: City o~ Bedding v. Shasta County, 36 Cal.

stating Executed Considerations, to allege them with the same certainty and particu­larity as to time and place, or as to quantity, quality, value, etc., as is required in stating Executory Considerations.42 It must, how­ever, be shown that the Executed Considera­tion was furnished at the defendant’s re­quest.

Executory Considerations

AN Executory Consideration is where the Contract is bilateral; that is, where a Prom­ise is given for a Promise, each Promise be­ing the Consideration for the other. In these cases a greater degree of certainty is re­quired than in stating an Executed Consid­eration. The performance of his Promise by the plaintiff may have been, according to the terms of the Contract, a condition precedent to the defendant’s liability to perform his Promise; or each may have been required to perform concurrently with the other; or the plaintiff may have been required to continue to do or forbear some act.

In the statement of an Executory Consid­eration precedent—that is, a promise by the plaintiff which was required to be perform­ed as a condition precedent to performance by the defendant—a great degree of certain­ty is required.43 “The Consideration, and the Promise of the defendant, are two distinct things, and In order to show that the plaintiff
App. 48, 171 P, 806 (1018); Connecticut: Andrews i-. lies, 3 conn. 365 (1820); indiana: Cioldsby v. Robertson, 1 BIackf (md.) 247 (1823); Massa­clinsetts: Balcom v. Craggin, 5 Pick. (Mass.) 205 (1827): Dodge v. Adams, 19 Pick. (Mass.) 429 (1837); New York: l’nl;er i’. Crane, C Wend. (N.Y.) 647 (1854); Pennsylvania: Stoever v. Stoer­or, 9 Serg. & it. (Pa.) 434 (1823); Vermont: Harding V. Cralgie, S Vt. 501 (1886).
42~ 1 Cliitty, On Pleading, e. IV, Of the Praecipe and

Declaration, 323 (Springfield, 3833); English: An­drews V. Whltehead, 13 East 105, 104 Eng.itep. 306

(1810); Sexton v. Miles, I Salk. 22, 91 Eng.Ilep. 21

(1689); Lampleigh v. Erathwait, MocKS. 887, 72

Eng.Bep. 960 (lelS).
43. 1 Chitty, 0n Pleading, c. IV, Of the Praecipe and Deelaration, 324 (Springfield 1833).


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