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Sec. 170

ACTION OF SPECIAL ASSUMPSIT

333

it seems that a general averment quad non per forrnav~t, or that ‘the defendant did not perform the said agreement,’ is insufficient [on Demurrer, though Aided by Verdictj, because ‘did not perform his agreement’ might involve a question of law, and also be­cause the object of pleading is to apprise the defendant of the cause of complaint, so that he may prepare his Plea and Defense and Evidence in answer.” 71 But “where the breach lies more in the defendant’s than the plaintiff’s knowledge, less particularity is re­quired.” 72



Where the matter to be performed by the defendant is contingent upon the happening of some other event, the Breach should not be Assigned in the Words of the Contract, but it should first be averred that such event has taken place; ~ and, if the Contract is in the Alternative or the Disjunctive, it is oh.. vious that the Assignment should be that the defendant did not do one act or the other.7-1
The omission to Assign a Breach renders the Declaration fatally defective, not only on Demurrer, but on Motion in Arrest of Judg­ment or Writ of Error; it cannot be Aided
Eng.Rep. 1042 (1664); MIssissippi: Williams v. Sta­ten, 5 Sin. & M. (Miss.) 347 (1845).
~ I Chitty, On Pleading, a IV, Of the Dcciara. tion, 343 (SprIngfield 1876); Knight v. Keech, 4 Mod. 189, 87 Eng.Rep. 341 (1601).
72. 1 Chitty, On Pleading, c. iv, or the Praccipc and Declaration, 369 (Springfield 1833).
73. English: Serra v. Wright, C taunt. 45. 128 Eng. Rep. 949 (1515); Alabama: Mc-Gehee v. Chihlress, 2 Stew. (Ala) 506 (1830).
74. As on a Promise to deliver a horse by a partiat­lar tjay, or pay a sum of money, or on a Promise that the defendant, and his Executors and Assigns, should repair. English: Wright -v. Johnson, I Sid. 440, 82 Eng.Bep. 1205 (1870); .àleberry v. Walby, I Sty. 229, 93 Eng.Rep, 489 (1719); Colt v. How, Ore. Ella, 348, 78 Eng.flep. 597 (1594).
But, in assigning the Breach of a Contract to pay, or cause to be paid, a sum of money, It Is sufficient to say that the defendant did not pay, omitting the dis­junctive words, for he who causes to be paid, pa~’s. Aleberry v, Walby, I Str. 229, 53 Eng.Rep. 489 (1710).

by Verdict.’5 But, if a Breach is Assigned, a defect in Assigning it must be taken ad­vantage of by Demurrer, and will be cured by Verdict.76

DECLARATION IN SPECIAL ASSUMPSIT— ESSENTIAL ALLEGATIONS: (6) TIlE

DAMAGES
170. The Declaration in Special Assumpsit should state the Damages which arise as the Direct and Legal, and sometimes the Actual, though not the Direct, Consequences of the



Breach. Such Damages may be General or Special, and should be alleged according to their nature.
WHEREVER there has been a Breach of Contract, the plaintiff is necessarily entitled to some compensation in the way of Dam­ages, though it may often be difficult to as­certain the amount)7 They must always be the direct or proximate result of the facts stated, and it is a general rule of pleading that the declaration must allege them, wheth­er they are the main object of the action or only an incident. The amount recoverable in Special Assumpsit is generally fixed by the terms or nature of the Contract itself, under recognized rules of law, and may be only the contract price with interest, or it may in­clude Special or Consequential Damage in ad­dition. The manner of stating the Damage will depend upon its character, as General or Special; but a sum large enough to cover the whole claim must be alleged, as it is a general
~5. I Chitty, On Pleading, c. Iv, Of the Praeeipe and

Declaration, 370 (Springfield 1838). Briekhead v,

Archbishop of York, Hob. 197, 80 Eng.Bep. 844

(1617); Heard v. Baskervile, Hob. 232, SO Eng.llep.

878 (1614).
76. English: Harmon v. Owden, 1 salk. 140, 91 Eng.

Rep. 130 (1691); Knight v. Keeeb, Skin. 344,90 Eng.

Rep. 153 (1692); Charnloy v. Winstanley, 5 East

270, 102 Eng. flep, 1072 (1804); New York: Thomas

v. Roosa, 7 Johns. (N.Y.) 461 (1811); Pennsylvania:

Weigley’s Adm’rs. v. Weir, 7 Serg, & U. (Pa.) 310

(1817); Virginia: Rorrel V. Mesiexander, 3 Rand.

(Va.) 94 (1824).


77. Comyn, Dig. “Pleader,” C. 84 (London, 1822).

334


OFFENSIVE PLEADINGS

Ch. [6

nile that the recovery cannot exceed the de­mand,78 though it may be less.1°



STATUS UNDER MODERN CODES,

PRACTICE ACTS AND RULES



OF COURT
171. The Action of Special Assumpsit, de~ spite efforts at change, continues to form a basis for liability, not only in the Non-Code States, but also in States operating under Mod­em Codes, Practice Acts and Rules of Court,
78. Tidd, Practice Of the Courts of Kings Bench and Common Pleas, 806 (9th S. London, 1825). Arkan­sas; Jones v. Robinson, S Ark. 484 (1848); Illinois:

Morton v. McClure, 22 III. 257 (1859); Maryland:

Harris v. Jaffray, 3 lIar, & 3. (Md.) 546 (1815); Vir­ginia: Tennant’s Ex’r. v. Gray, 5 Munf. (Va.) 494 (1817).
The ad damnurn clause will govern though a less amount be laid, under a Videlicet, in the body of the Declaration. Chicago & A. U. Co. v. O’Brien. 34 III. App. 155 (1880).
When a larger amount is recovered than is claimed, the error may be cured by a Remittitur of the Ex­cess, and this will generally be required. Louisville, B. & St. L. R. Co. v. Harlan, 31 m.App. 544 (1826).
Damages arising subsequent to the Commencement of the Action were not generally allowed at Common Law, the Judgment being taken to refer to the sit­uation of the parties at the time the suit was brought, chiefly on the ground that these subsequent matters would take the defendant by surprise. Duncan v. Markley, 1 Harp. (S.C.) 276 (1824); Comyn, Dig. “Damages,” I) (London, 1822).
It Is now the general rule, though its application is not free from difficulty, that such Damages may be included in the recovery where they are the direct and material consequences of the Breach, and so connected with it that they would not sustain an action by themselves. English: Fetter v. Beal, I Ld.llaym. 339, 01 Eng.Itcp. 1122 (1698); Maryland:

Cooke v. England, 27 Md. 14, 02 Am,Dee. 618 (1867); Massachusetts: Pierce v. Woodward, 6 Pick. (Mass.) 206 (1828); Minnesota: Chamberlain v. Porter, 9 Minn. 260 (Gil. 244) (1864). See, also, the follow­ing eases; Massachusetts: Warner v. Bacon, S Gray (Mnss4 307, 60 ArrnDec. 25~ (1857); West Virginia:

Jameson v, Board of Education, 78 W.Va. 612, 59 SE. ~55, L.R.A.19113F, 926 (1916).
~0. Eaglish: Gardiner v. Croandale, 2 Burr. 904, 97

Eng.Rep. 625 (1760); New York: Van Rensselaer’s

tx’rs. v. Platner’s Ex’rs, 2 Jolrns.Cas. (N.Y.) 18

(1806); South Carolina: Covington y. Lide’s Ex’rs,

I Hay (S.C.) 158 (1791). See, also, Sayer, Damages,

45 (London, 1770).

THE Status of Special Assumpsit under Modern Codes, Practice Acts and Rules of Court, clearly appears from a series of cases to which reference will now be made.
Long before the Code of 1848, in the pivot­al New York ease of Thoi-ne c~ Thorne v. Deas,8° decided in 1809, which involved an Action of Trespass on the Case Super Se As­sumpsit for a Nonfeasance in not causing in­surance to be taken on a certain vessel, Chief Justice Kent, after reviewing the eal’)y Com­mon Law learning on the development of Special Assumpsit out of Trespass on the Case, from Watton v. Brinth,8decided in 1400, to the Anonymous Caae in 1505,52 held that the promise to take out insurance was not good, without showing a Consideration. In Candler c~ Hart v. Rossiter,83 decided in 1833, the plaintiff declared in Assumpait for Money Paid, omitting the ordinary Super Be Assumpsit—that the defendant undertook and promised—and instead thereof stated the circumstances of his case, to wit, that he bought a quantity of fish for the purpose of shipping it to a foreign port; that defendant, as a joint adventure placed a similar quan­tity of fish on board the same vessel, the parties to share the profit arid loss; that the fish were so damaged at sea, that they were sold at a loss, the whole of which the plaintiff sustained and paid, without having received any part thereof from the defendant, where­by the plaintiff was damaged in the sum of $500. On Writ of Error, after a Trial and Verdict for the plaintiff, it was held that the Declaration was bad in not alleging a prom­ise by the defendant and hi not setting forth a consideration. In reversing the Judgment below, Sutherland, J., declared:
“It is probable that at this day the defect in those Declarations would be considered a
80. 4 Johns. (N.Y.) 84 (1800).
SL Y.B. 2 Hen. IV, Sb (1400).
~. Kellway, 78, p1. 5, 72 Eng.Rep. 239 (1505).

as. ,~ we,~t (N.Y.) 487 (1838).

Sec. 171

ACTION OF SPECIAL ASSUMPSIT

33:

clerical omission, as the sentence in each was obviously imperfect without the words Un­dertook and Promised—Super Sc Assumpsit, &c.; but They mark strongly the indispensa­ble importance of the Allegation that the de­fendant promised, &c. Mr. Lawes, whose treatise on pleading in the Action of As­surnpsit is of the highest authority, seems to consider the omission of the Allegati on as fatal, after Verdict. This doctrine, upon the authority of the preceding cases, was also admitted by the Supreme Court of Massa­chusetts, in 3 Mass.R. 160; opinion of Sedg­wick, J., page 176. Judge Gould, in his val­uable treatise on pleading, speaking on the subject of direct and positive averments, says, the rule appears to be, that all those facts which are directly denied by the terms of the general issue, or which may, by the established usage of pleading, be specially traversed, must be averred in direct and pos­itive terms. Thus, in Assumpsit the Promise must be stated in terms direct and positive, because the general issue, Non ..4ssumpsit, purports to be a direct denial of the Promise. Gould’s Treatise on Plead. 73, § 42, 44, 75. Considering therefore, that no contract or agreement whatever is distinctly stated, nor any promise by the defendant, nor any con­sideration for a promise, I think the Judg­merit must be arrested. These defects are not cured by the Statute of Jeofails; it is the case of a defective title, and not of a good title defeCtively set out”~


After the adoption of the Code of 1848, in the case of Bootft v. The Farmers c~ Mechan­ics’ National Bank of Rochester,85 the plain­tiff filed a Declaration in Assumpsit contain­ing two Counts. The first Count set forth that the defendant had assigned to the plain­tiff a Judgment, that thereafter the defend­ant discharged the Judgment; that the de­fendants in the Judgment owned personal property, which, but for the discharge of the
84. 10 Wend. (N.Y.) 487, 491 (1833).
~- 1 Thomp. & C. 45, 65 Barb. 457 (1873).

Judgment would have been liable to execu­tion and sale; and the defendants in the Judgment are now insolvent; and the plain­tiff has been injured by the discharge. The second Count alleged that defendant was in. debted to the plaintiff for Money Had and Received. The defendant demurred on the ground of a Misjoinder of Actions, viz, one for a Tort, and one on Contract. On an Ap­peal from an Order overruling the Demurrer, the Order was reversed.


The first Count omitted the Allegation that the defendant undertook and promised to do the act complained of—that is. the Implied Promise by the defendant not to satisfy the Judgment. Without such an Allegation the Count was in Case. And as the second Count was in Contract, there was a violation of the then rule of pleading that Tort and Contract Actions could not be joined. In reversing the Order of the Lower Court, the Court de­dared;
“The Codifiers, while proposing to abolish the distinction between Forms of Actions, found it impossible or impracticable, in many cases, to effect their object, and this case illustrates the failure in at least one class of cases. When Case and Assumpsit were, at Common Law, Concurrent Reme­dies, the Form of Action that the pleader selected was determined, as I have shown, by the insertion or omission from the Dec­laration of the Allegation, that the defend­ant “undertook and promised.” This right of selection remains, and Whether the action is in Tort or Assumpsit must be determined by the same criterion. If this is not so, then the right of election is taken away. If tak­en away, which of the two is left? An Ac­tion on Contract cannot be joined with one in Tort. How are we to determine whether the action is One on Contract or in Tort, unless the pleader, by averment, alleges the making of the Contract, and demands dam­ages £ or a Breach in the one case, or by the omission of such an averment makes it an

886

OFFENSIVE PLEADINGS

cit. 16


Action in Tort? I know of no more certain or convenient criterion by which to deter­mine the class to which a Cause of Action belongs than the one suggested. If some such rule is not established the question of misjoinder will arise in every case hi which, at Common Law, Assumpsit and Case were Concurrent Remedies.” ~
In the case of Glanzer v. Shepard, decided in 1922,87 public weighers were requested by the seller to weigh goods sold, and were paid for their services by the seller, and the property was accepted and paid for by the plaintiffs, the buyers, on the faith of the weigher’s certificate. Upon discovering that the actual weight was short by 11,854 pounds, the plaintiffs brought suit for $1,261.-26, the amount over paid. In the City Court of New York, the Trial Judge, upon Mo­tion made by each side for the direction of a Verdict, gave Judgment for the plaintiffs. The Appellate Term reversed upon the ground that the plaintiffs had no contract with the defendants, weighers, and must seek their remedy against the seller, whereupon the Appellate Division reversed the Appel­late Term and reinstated the Verdict. On Appeal, the Court of Appeals affirmed the Judgment. Judge Cardozo declared; “We state the defendant’s obligation, therefore, in terms, not of contract merely, but of duty. Other forms of statement are possible. They involve, at most, a change of emphasis?’ 88
St. flo~tb v. The Farmers & Mechanics’ National

Bank of Rochester, I Thonip. & C. 45, 50, 65 Barb.

457 (1873). See, also, Groco v. S. 3. ICrcsgc Co.,

277 N.Y. 26, 12 N.E.2d 557 (1938), reviewed in 13 St

John’s L.Rey, 187 (1938) and in 23 Mlnn.L.fley. 92

(1938).
87. Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922).


88. Gianser v. Shepard, 233 N.Y. 236, 241, 135 N.E.

275, 277 (1922).

In the Illinois case of Banik v. Bishop­Stoddard Cafeteria Co., The.89 decided under the Illinois Practice Act, a former employee of a corporation, which had agreed to buy his stock in the corporation upon the termi­nation of his employment, upon refusal of the corporation to buy the stock, filed a suit to recover damages equal to the differ­ence between the amount which the corpora­tion had agreed to pay and the amount rea­lized from sale thereof on the open market. The Declaration consisted of the Common Counts, to which the defendant pleaded the General Issue and two Special Pleas, one of which stated that the alleged promises were not evidenced by any writing, and hence were within the Statute of Frauds, while the other stated that the alleged promises were with­out consideration. At the conclusion of plaintiff’s evidence, and at the close of all the evidence, the defendant moved for a Direct­ed Verdict. The Motion having been de&ed, a Verdict was rendered finding the defendant liable and assessing the plaintiff’s damages at $758.00. The defendant moved for Judgment Notwithstanding the Verdict, in Arrest of Judgment and for a New Trial, which Mo­tions were denied, although with a Remitti­ter of $350, after which Judgment was ren­dered in favor of Plaintiff, On Appeal, the Judgment was reversed and remanded, the Court stating that the Common Counts can­not be resorted to where there is a Special Contract and the Breach thereof is the gray-amen of the action, but in such case the plaintiff must declare specially.
From the foregoing discussion, it appears that the Action of Special Assumpsit, despite the efforts at reform, is still alive and vigor­ous, not only in the Non-Code States, but also in States operating under Modern Codes, Practice Acts and Rules of Court.

89. 288 Ifl.App. 174 (1937).

Sec.

CHAPTER 17



THE ACTION OF INDEBITATUS ASSUMPSIT1

172. Scope of the Action.

173. Express Contracts Which Do Not Exclude Indebitatus Assumpsit.

174. Indebitatus Assurnpsit Distinguished From and Concurrent With Other

Actions

175. Forms of Declarations in Indebitatus Assumpsit.



176. The Common Counts.

177. Contracts of Record and Statutory Liabilities.

178. Declaration in Indebitatus Assumpait—Essential Allegations:

(1) In General.

179. Declaration in Indebitatus Assumpsit—Essential Allegations:

(2) Statement of an Executed Consideration.

180. Declaration in Indebitatus Assumpsit—Essential Allegations:

(3) The Promise.

181. Declaration in Indebitatus Assumpsit—Essential Allegations:

(4) The Breach.

182. Declaration in Indebitatus Assurnpsit—Essential Allegations:

(5) The Damages.

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

SCOPE OF THE ACTION
172. Indebitatus or General Assumpsit is

brought for the Breach of a Fictitious or implied Promise raised by Operation 0f Law from a debt founded upon an Executed Considera­tion. The basis of the action is the Promise Implied by Law from the Performance of the
1. In general, on the Origin, 1-lisfory and Develop­ment of the Action of Gcneral (Indcbitatus) As­Sunipsit, see:
Trcaflses: Evans, Essays; en the Action for Money
Had and Received; and on the Law of Insurances

(Liverpool, 1802); Hare, The Law of Contracts, c.

XI, Implied PromIses, 227—240 (BostOn, 1887);

Keener, A Treatise on the Law of Quasi-Contracts,

C. III, Waiver.of Tort, 159—213 (New York, 1893);

Pomeroy, Code Remedies, c. III, § 406, History of the

Action of Assumpsit, 530 (4th ed. by Bogle, Boston,

1904); Martin, Civil Procedure at Common Law, e.

II, Persona] Actions Ex Contractu, Article III, 40— 61, §~ 51—GO Assumpsit, (St. Paul, 1005) Martin,

Civil Procedure at Oommon Law, Appendix, Note 1,

General Assumpsit for Part Performance of Express

Contracts, 341—349 (St. Paul, 1905); 3 Street, Foun­dations of Legal Liability, c. xv, Action of Indebit­atus Assumpsit, 182 (Nortliport, 1900); Woodward,

- The Law of Quasi-Contract, c, J, Iiidebitatus As-

Consideration, or from a debt or legal duty restIng upon the defendant.


Assumpsit—Generca or Special

THERE finally evolved, from the original Tort Action of Trespass on the Case Super Sc Assumpsit, the Actions of Special Assumpsit


sumpsit, § 2 (Boslon, 1013) : 3 Holdsworth, History of English Law, c. III, (4) The Extension of the Ac­tion to Remedy the Breach of Implied Oontract, 440— 454 (34 ed Boston, 1027); Anson, Principles of the English Law of Contract, Pt. VII, Contract and Quasi-Contract, 426 (lSth Ed,, Oxford, 1937); Jack­son, The History of Quasi-Contract In English Law, Pt. 1, Before the Rise of I~debitatus Assumpsit in the 17th Century; Pt. II, From the Rise of mdclii­tatus Assnmpsit to the 5ettlejncn~ of the Main Pt-in­ciples (Cambridge, 1036) ; Maiunnd, The Forms of Action, Lecture VI, Asstunpsit, 09 (Cambridge 1902); Fifoot, 1-liitory and Sources of the common Law, c. 15, The Subseauent Development of Assunipsit, Indebitatus Assumpsit, 353-380 (London 1040).
Articles: Holmes, Early English EquIty, 1 L.Q.Rov.

162 (1885); Adoiphus, The Circuiteers, An Edogue,

1 L.Q.Rev. 232 (1885); Ames, History of Assumpsit,

Pt. II, 2 Harv.L.Rev. 53 (1888); Ames, Assump­sit for Use and Occupation, 2 Harv.L.Rev. Sir

337

238


OFFENSIVE PLEADINGS

Ch. 17

and Indebitatus or General Asslmrnpsit. As differentiated, Special Assumpsit became the remedy for the Breach of an Actual, Express Promise contained in a Contract entered into by the parties, whereas In­debitatus Assumpsit became the remedy in the field of Simple (Executed) Contract, the action not being grounded upon a Special Contract or Actual Promise, but upon - a promise Implied by Law from the existence of a legal duty to pay money for value re­ceived.


Contracts Implied in Fact and in Law
IN this connection, however, it should at once be observed that the term “Implied Con­tracts” has been and is used in at least two senses.
As used in one sense it means a Tacit Con­tract, Implied as a Matter of Fact from the conduct of the parties, because their course of conduct shows agreement, as where one of them has delivered goods to or performed
(1889); Keener, Waiver of Tort, 6 }IarvL.Rev. 223,

269 (1803); Corbin, Waiver of Tort and Suit in As’

sumpsit, 19 Yale L.J. 221 (1910); Hanbury, The

Recovery of Money, 40 L.Q.Rev. 31 (1924); Cohen,

Change of position in Quasi-Contracts, 45 Ilarv.

L.Rev. 5333 (1932); Langmaid, Quasi-Contract—--

Change of Position by Receipt of Money in Satis­faction of a Preexisting Obligation, 21 CahiLL.

Rev. 311 (1933); House, Unjust Enrichment: The

Applicable Statute of Limitations, 35 Corn.L.Q.

797 (1050); Seavey, Problems in Restitution, 7

Olcla.L.Rev, 257 (1954).
Comments: Pleading: Sufficiency of the Common Counts, 4 Calif.L.Itev. 352 (1915—bIG); Pleading:

Complaint: Common Counts: Allegation of Promise to Pay Where Services Rendered to Third Par­ty, 21 Cahif.L.Rev. 396 (1933); Contracts—Implied Contracts—Implied Warranty in Bailment and Oth­er Non-Sales Contracts, 17 Minn.L.Rev. 210 (1933); Pleading—Complaint——Common Counts in Assump­sit Followed by AllegatIon of Promise to Pay, 21 Minn.L.Ilev. 756 (1937); Eckor, Contract: Sales:

Property in Ideas: Ideas as Subject Matter of Ex­press, Implied in Pact and implied in Law Con­tracts, 31 Corn.L.Q. 382 (1946).
Annotation: Previous Debtor and Creditor Relation­ship a Condition of Account Stated, 6 A.L,B.2cI 113 (1949).

services for another, at the other’s request or with the other’s knowledge, and under such circumstances as to raise a presump­tion that the other, as a reasonable man, must have known that payment for them was expected. Although no Express Promise to pay was made, the Law recognizes that by his conduct he Impliedly Promised to Pay, and to enforce this Implied in Fact Promise, Assumpsit is the proper remedy.2


The term “Implied Contract,” as used in a

- second sense, is applied to promises Im­plied or Created by Operation of Law, without any agreement between the par­ties, and oftentimes, even when the circum­stances actually negative the existence of any agreement whatsoever, as where one pays money which another person ought to have paid, or receives money which another ought to have received, or, in some cases, where benefits are conferred upon another without any agreement. The Promise thus said to be Implied in Law is a sheer fiction of Law, resorted to for the purpose of allow­ing a remedy in Assumpsit. Such Obliga­tions are not Contractual, but Quasi-Con­tractual,3


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