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EXPRESS CONTRACTS WHICH DO NOT

EXCLUDE INDEIIITATUS ASSUMPSET
173, Indebitaths or General Assumpsit will not lie where there has been an Express Con­tract, except that it may be permitted in in­stances such as the following:
(I) Where the facts underlying the Ex­press Contract are equivalent to the legal duty created by the Con­tract.

(II) ‘Where the Contract, or some divisi­ble part thereof, has been Fully Executed by the plaintiff, and noth­ing remains but the payment of money by the defendant.


2. Ames, Lectures on Legal History, c. XIV, Implied Assuzapsit, 154—150 (Cambridge 1913).
3. Woods v. Ayres, 39 Mich. 345, 33 Am,Bep. 396 (1578).

Sec. 173

ACTION OF INDEBITATUS ASSUMPSIT

339


Contract and the Substantially Per-defendant has re­(IV) Where, aft-er part Performance of

the Contract, Further Performance is prevented by an act of the de­fendant, or by some act or event

which in law operates as a dis­charge of the Contract, or if the Contract is abandoned or rescinded.



(V) Where the Contract is merely void

(not illegal), or merely unenforce­able, or voidable and has been avoided, there may be a recovery in General Assumpsit for Part Per­formance. -

(VI) Where Additional Work has been

done on request in performing a Special Contract.
THE general rule of law is that if there is an Executory Special Contract, Indebitatus .Assumpsit will not lie; for the Jaw will not Imply a Promise to pay, except where the Consideration is Executed on the plaintiff’s part and a duty arises to pay the value of what he has done.4
The leading English case of Cutter v. Pow­elI,~ is cited in the leading American case of
4. See Cutter v. Powell, reported in 2 Smith, Leading

Cases, 1, notes, 9 (13th ed. by Chitty, Denning &

Harvey, London, 1929); Illinois: Theis V. Svoboda,

166 Ill.App. 20 (1911); Indiana: Edward Thompson

Co. v. Kollmeyer, 40 Ind.App. 400, 92 N.E. 660 (1910). To recover in Assumpait for Breach of an Executory

Contract of Salc of corporate stock, plaiutiff must Declare Specially on the Contract, General Counts alone not being sufficient except whcre payment is the only unperformed act. Thomas v. Mott, 78 W. Va, 113, 88 SE. 651 (1016).


Where a Special Contract remains Executory, the plaintiff must sue upon it. Maryland: Waddell V. Phillips, 133 McI. 497, 105 A. 771 (1910); Svest Vir­ginia: Standard Fashion Co. v. Loplnsky, 84 W.Va. 522, 101 S.E. 152 (1910); Federal: Kinney v. Mc­Nabb, 44 App.D.C. 340 (1910).
A claim for Damages for Breach of Contract to do some act other than pay money must he Specially PloaGed. nook v flado, 191 SUch. 561, 158 N.W. 175 (1016).

Hersey v. I’Torthern Assurance Co.,6 in which the Court alluded to the Common Law rule as follows: “In the present ease the facts aside from the Promise, viz: the plaintiff’s ownership of the property, its destruction by fire without his fault,—even the pay­ment of premiums,—do not raise an Implied Promise by the defendant to pay; it is only the fact that it Promised, upon certain con­ditions, to pay, that makes it liable. Con­sequently, at Common Law, the Promise, the Conditions, and the Fulfillment of the Conditions, must be set forth—in other words the Count must be Special.” I
But an Express Contract, under which a transaction has been Partially or Wholly Ex­ecuted, does not always exclude an Action of Indebitatus or General Assumpsit for money due on such transaction. The factual situa­tion involved may give rise to an Implied Contract, in which case recovery may be had on a Common Count. The occasions when this may occur may be grouped under the following heads:

6. 75 Vt. 441, 56 A. 05 (1903).

7. Hersey v. Northern Assurance Co., 75 Vt. 4-41, 443.

56 A. 03 (1903).


S. Gibbs v. Bryaut, 1 Pick. (Mass.) 115 (1822). See,

also, English: Pownal V. Ferrand, 0 B. & C. 439.

108 Eng.Bep. 513 (1827); MaIne: Davis v. Smith,

10 AtI. 55 (1887); Federal: Keene v. Meade, 3 Pet

(U.S.) 1, 7 LEd. 581 (1830).

(III) Where there is a plaintiff has not formed, but the ceived a benefit.

(I) Where the Facts Underlying the Ex­press Contract are Equivalent to the Legal Duty Created by the Contract.—Where the Express Contract in question creates no oth­er obligation than that which the Law would normally imply from the existing factual situation, a Common Count in Indebitatus Assumpsit will lie; Thus, in Gibbs v. Br~ ant,8 where the defendant had made a written promise to indemnify the plaintiff for a pay­ment made by the plaintiff, it was held that the action could be supported for the pay­ment of money by the plaintiff for the use

~‘ 2 Smith’s Leading Cases, 1 (13th ed. by Chitty,

Donning & Harvey, London 1929).

OFFENSIVE PLEAIMNGS

of the defendant, even though there was an Express Promise to pay the debt.9


(II) Where the Express Contract has been Fully Executed or Performed, and nothing remains but the Payment of Money big the Dc! endant..—If the Contract has been Fully Executed by the plaintiff and nothing re­mains to be done but the payment of the price in money by the defendant, the plain­tiff may either declare in Special Assumpsit on the Contract, or he may declare in General Assumpsit, at his Election, or he may join the Common Counts with Special Counts.1°
9- if, by the terms of the Special Contract which the plaintift has performed, ho is to be psi0, not In money, but in specific articles, the action must be Ia Special Assurapsit. Thus, the Common Counts will not lie where the price is payable partly in cash and partly by the conveyance of land, English harrison v. Luke, 14 M. & W~, 139, 153 Eng. Bep. 423 (1845) ; Illinois: Meyers v. Seherup, 07 ill. 469 (1873); Kinne v. Lane, 230 111. 544, 82 N.E. 578, 120 Am.St.llep. 335 (1917); Ken tveky: Cochran

v. Tatiun, 3 T.B.Mon. (Ky.) 405 (1826); Maine:

Thomas Mfg. Co. v. Watson, 55 Me. 300, 27 A. 1711 (1593) Massachusetts: Erncrton v. Andre~vs, 4 Mass. 653 (1808); Baylles v. Fettyphace, 7 Mnss. 320 (1811); Shearer v. .lewett, 14 Pick. (Mass.) 232 (1333): Michigan: Pierson v. Spaulding, 61 Mieh. 00, 27 NW. 865 (1886); New Hampshire: Ranlett v. Moore, 21 N.H. 336 (1850); New TorI;: Wilt V. Ogden, 13 Johns. (N.Y.) 56 (1816); Pennsylvania:

Doebler v. Fisher, 14 Serg. & it. (Pa.) 179 (1820); Virginia: Brooks v. Scott’s Ex’rs, 2 Munf. (Va.) 344 (1811).


Indebitatus Assumpsit is Dot the proper form of ac­tion whore the agreement sought to be enforced is not for the payment of money for machinery, but for the liquidation of the debt by the obtaining of notes from a third party for whom the defendant is acting. Power Equipment Co. v. Gale Installa­tion Co., 210 1l1.App. 147 (1918).
10. Alabama: Trammell v. Lee County, 94 Ala. 104,

10 So. 213 (1891); lUinois: Lane v. Adams, 19 Ill.

167 (1857); Tunnison v. Field, 21 III. 108 (1839); Combs v. Steele, 80 Ill. 101 (1875); Throop v, Sher­wood, 4 Gil. (III.) 92 (1847); MeArthur Bros. Co. v. Whitney, 202 IN. 527, 07 N.E. 163 (1903); Maryland:

ltidgcley v. Crandall, 4 Md. 441 (1853); Massachu­setts; Everett v. Cray, 1 Mass. 101 (1804); Felton v. Dickinson, 10 Mass. 287 (1813); KnIght v. New England Worsted Co., 2 Cush, (Mass.) 271 (1848); ~ahcr v. Corey, 19 Pick. (Mass.) 496 (1887); Micbi­gall: Nugent v. Teachout, 67 Mich. 572, 35 NW.

Where the Deciaration is in General Assump­sit, it is not based on the Special Contract, but on the defendant’s legal liability to pay for the benefits received; but the Contract is evidence of the value of the benefits, and his recovery will be limited to the compensa­tion therein fixed.
If we assume that the insafficient per­Lormance gives a right to recover, the Action would be upon the Common Counts.1
254 (1887); New York: JeweU V. Scliroeppe], 4 Cow. (N.Y.) 56-1 (1825); Williams v. Sherman, 7 Wend. (N.Y.) 109 (1831); Pettier v. Sewal), 12 Wend. (N.Y.) 286 (1834); Dubois v. Delaware & H. Canal Co., 4 Wend. (N.Y.) 285 (1830); Pennsylvania: ho­meisler v. Dobson, 5 Whart, (Pa.) 398 (1839); ICelley v. Foster. 2 Bin. (Pa.) 4 (1800); Miles v. Moodle, 3 Serg. & It. (Pa.) 211 (1817); Virginia: Baltimore & 0. It. Co. v. Polly, 14 Gratt. (Va.) 477 (1858); Fed­cral: Dermott v. Jones, 2 Wall. (U.S.) 1, 17 L,Ed. 762 (1864); Lank of Columbia v. Patterson, 7 Cranch (U.S.) 299, 3 LEd. 351 (1813); Chesapeake & 0. Canal Co. v. Knapp, 9 Pet. (U.S.) 541, 9 LEd. 222 (1835); Perkins v. Hart, 11 Wheat. (U.S.) 237, 6 LEd. 463 (1826).
The action cannot be brought before the expiration oI a term of credit given by the Special Contract, for until then the defendant has not broken his Con­tract, and no tight of action at all has accrued.

English: Itobson v. Godfrey, 1 Stark, 275, 171 Eng. Rep. 225 (1816): Illinois; Manton v. Gammon, 7 1ll.App. 201 (1880); Massachusetts: Hunnemann V. Inhabitants of Orafton, 10 Mete. (Mass.) 454 (1845); Loring v. Gurney, 5 Pick. (Mass.) 16 (1827); Penn­sylvania: Girnrcl i-. Taggart, 5 Serg. & fi. (Pa.) 19. ft Am.Dec. 327 (1818).


The Common Counts lie in case of a Contract for the sale of goods only where the contract has been per­formed by the seller, and nothing remains to be done but to make the payment. Alabama: Montgomery Co. v, New Parley Nat. Bank, 200 Ala. 170, 75 So. 918 (1917); illinois: Brand v. Henderson, 107 111.

141 (1853).


Where an attorney rendered services under a Con­tract providing for a contingent fee, and the Con­tract was whelly Executed, he may recover his fee ía Assumpsit on the Common Counts, Carpenter v. Smithey, 118 Va. 533, 88 S.E. 321 (1016).
Common Counts niny be 3oined with a Special Count, alleging an Express Written Contract. Conserva­tion Co. v. Stimpson, 136 Md. 314, iIO A. 495 (1920); Alexander v. Capital Paint Co., 136 Md. 858, 111 A. 140 (1920).

340


Cli. 17

ix. - For an authoritative statement of the law con­cerning Contracts substantially performed and the

ACTION OF INDEDITATUS ASSUMPSIT

(m) Where there is an Express Contract and the Plaintiff has not Substantially Per­formed, but the Defendant has received a beneflt.—Where the plaintiff has, without his wilful default, failed to perform the Special Contract, in some material respect, within the time or in the manner therein stipulated, he cannot maintain Special Assumpsit on the Contract, as he cannot show Substantial Per­formance on his part?-2 If he can recover at all, it must be in General Assumpsit, on a Promise by the defendant Implied in Law because of the benefits received by him. As to whether he can recover at all, even in General Assumpsit, the authorities are not in agreement. The question is whether the Law will refuse a party in default any relief or will Imply a Promise by the defendant



to Pay for the benefits received by him. If it will, General Assumpsit will lie; but, if it will not, there can be no recovery at all. The question must be answered by the Sub­stantive Law of Contract or Quasi-Con­tract.’3
remedies therefor, see Dcnnott v. Jones, 2 Wall. (U. 8.) 1, 17 LEd. 762 (iSO-i).
12. Hayward v. Leonard, 7 Pick. (Mass.) 181, 10 Am. Dee. 268 (1828).
13. See Clark, Contracts, c. 32, Recovery for Benefits Conferred, § 273. 647 (3d ed. by Throekmorton, St. Paul 1914).
For cases in which recovery in General Assurapsit has been allowed, see: English: Lucas V. Godwin, 3 Bing. (N.C.) 737, 132 Eng.Rcp. 505 (1837); Connecti­cut: Blakeslee v. Holt, 42 Cone. 226 (1875); Pinch-CS V. Swedish Evangelical Lutheran Church, 55 Conn. 183, 10 A. 264 (1887); Iowa: Corwin t Wal­lace, 17 Iowa 374 (1864); Maine: Norris v. School District No. 1 In Windsor, 12 Mc. 203, 28 Am.Dec. 182 (1835); WhIte v. Oliver, 36 Me. 92 (1853);

Massachusetts: Hayward v. Leonard, 7 Pick. (Mass.) 181, 10 Am.Dec. 268 (1828); Blood v. Wilson, 141 Mass. 25, 6 N.E. 362 (1886); Ne­braska: McMiIlan v. Malloy, 10 Net,. 228, 4 N.WT. 1004, 35 Axn.Rep. 471 (1880); New Hampshire:

Wadleigh v. Town of Sutton, 6 N.H. 15, 23 Am.

Doe. 704 (1832); Tennessee: Parker v. Steed, 1 Lea (Penn.) 206 (1878); Vermont: Kelly V.

Town of Bradford, 33 Vt 35 (1860); Viles t. Barre & M. Traction & Power Co.. 70 Vt. 311, 65 A. 104 (1906); Wisconsin: Taylor v. Williams, 6 Wis.

(IV) Where After Part Performance of the Contract, Further Performance is Pre­vented by an Act of the Defendant, or by Sonic Act which in Law Operates as a Dis­charge of the Contract, or if the Contract is Abandoned or Rescinded.—If, after the

plaintiff has performed part of the Special Contract according to its terms, he is pre­vented from performing the residue by some act of the defendant; 14 or if he is so pre­vented by some act or event, not within the control of either party, which in law operates as a Discharge of the Contract, and Excuses Nonperformance by him of the residue; 15 or
363 (1838); Feilera]: Dermott v. Jones, 23 How.

(U.S.) 220, 16 LEd. 442 (1859). See, also, article by

Ballantine, Forfeiture for Breach of Contract, 5

Minn.L.Eev. 320 (1021).


For cases In which it Is held that there can he no

recovery at all, see Cutter V. Powell, 8 PIt. 320,

101 Eng.Rep. 573 (1705), to which is attached an

exhaustive note, in 2 Smith’s Leading Cases, 0

(13th ed. by Chitty, Denning & Harvey, London

1929).
4. Illinois; Bannister V. Read, I Gil. (III.) 99 (18-14); Selby v. 1-lutehinson, 4 Cii. (111.) 319 (1847); Catho­lic Bishop of Chicago v, Laucr, 62 In. ISS (1871); Banger v. City of Chicago, 65 111. 506 (1872); Guer­don v. Corbett, 87 Ill, 272 (1877); Kipp v. Massin, 15 I1l.App, 300 (1884); Indiana: Hoagland v. Moore, 2 Blackf. (md.) 167 (1828); Maine: Wright v. Has];-eli, 45 Mc. 480 (1858); Massachusetts: Moulton v. Trask, 0 Mete, (Mass.) 577 (1845); Johnson v. Trin­ity Church See,, 11 Allen (Mass.) 123 (1803): Mich­igan: Mooney v. York Iron Ce., 82 Mieh. 263, 46 NW. 376 (1800); New York: Duljois v. Delaware & H. Canal Co., 4 Wend. (N.Y.) 285 (1530); Jones

v. Judd, 4 N.Y. 411 (1550); Pennsylvania: Hall

v. Itupley, 10 Pa. 231 (1849); Algeo v. Algeo, 10 Berg, & It. (Pa.) 235 (1823); Rhode Island:

Greene v. haley, SRI. 263 (1858); Vermont: Derby v. Johnson, 21 Vt. 17 (1848); Federal: Perkins ‘s-. Hart, 11 Wheat. (U.S.) 237, 6 L.Ed. 463 (1820).
15. Connecticut: Leonard v. Dyer, 26 Conn. 172, 68 Am.Dec. 382 (1857); Maine: Lakeman v. Pollard, 43 Me, 464 (1857); Massachusetts: Wihlington V. In­habitants of West Boylston, 4 Pick. (Mass.) 101 (1826); Fuller v. Brown, 11 Mete. (Mass.) 440 (1846); New York: Wolfe v. flowes, 20 N.Y. 197, 75 Am.Dec. 386 (1859); Rhode Isla,id: Yerrington v. Crouno, 7 RI. 589, 84 Am.Dec. 578 (1863); Parker v. McComb­er, 17 RI. 674, 24 A. 464, 16 L.R.A, 858 (1892); Ver­mont: Fenton v. Clark, 11 Vt 557 (1839); Wiscon­

Sec. 173


341

OFFENSIVE PLEADINGS Ch. 17

if, after such Partial Performance, the Con­tract is abandoned by mutual consent, or waived or rescinded it__the plaintiff may maintain General Assumpsit to recover for what he has done. Or, in the case of pre­vention of Further Performance by the de­fendant, the plaintiff may, at his Election, sue in Special Assumpsit, for such preven­tion is a Breach of the Contract by the de­fendant, and the plaintiff may, instead of claiming a Discharge of the Contract, con­sider it as being still in force.’7


sin: Green v. Gilbert, 21 Wis. 401 (1867); Jennings v. Lyons, 30 Wis. 553, 20 Am.Rep. 57 (1876).
10. Illinois: Bannister v. Read, I Gil. (III,) 99 (1844); Catholic Bishop of Chicago v. Baner, 62 Xli. 185

(1871); Indiana: Adams v. Crosby, 48 lad. 153

(1874); Massachusetts: Goodrich v. Lafflhi, 1 Pick. (Mass.) 57 (1822); hill v. Green, 4 Pick. (Mass.1 114 (1820); Munroe v. Perkins, 9 Pick. (Mass.) 298, 20 Am.Dec. 475 (1530); Michigan: Allen v. MeKib­bin, 5 Web. 449 (185S); Wildey v. Fractional School Dist. No. I of Paw Paw and Antwerp, 25 Mich. 419 (1872); New Hampshire: Jenkins v. Thompson, 20 N.H. 457 (1846); New York: Dubois v. Delaware & H. Canal Co., 4 Wend. (N.Y.) 285 (1830); Linning­dale v. Li’-ingstorm, 10 Johns. (N.Y.) 36 (1813); Fed­eral: Perkins v. Hart, Ii Wheat. (U.S.) 237, 6 L. Ed. 463 (1826).
it Alabama: Davis v. A~’res, 0 Ala. 292 (1846); Ken­tucky: Jewell v. Blandford, 7 Dana (Ky.) 473 (1838);

Eankin v. Darnel], II B.Mon. (Ky.) 31, 52 Am.Dee.

557 (1850); New York: Jones v. Judd, 4 N.Y. 411

(1850); Pennsylvania: Pedaa i-, Hopkins, 13 Serg. &

R. (Pa.) 45 (1825); Stewart v. IValicer, 14 Pa, 293

(1853); vermont: Derby v. Johnson, 21 Vt. 17

(1848). See, also, Illinois: Levy & flipple Motor

Co. v. City Motor Cab Co., 174 hll.App. 20 (1912);

Massachusetts: St. John v. St. John, 223 Mass. 137,

lfl N.E. 719 (1916); ‘Wisconsin: Loehr v. Dickson,

141 Wis. 332, 124 N.W. 293, 30 LIlA. (N.S.) 405

(1010).
It was held in Illinois that a recovery of tIme balance due on a building Contract cannot be had under Common Counts, where the contractor relies on Mat­ter of Excuse for not procuring the final certificate of approval by the architect; but in case of Sub­stantIal Performance, where no certificate is called for, recovery may he had under the Common Counts for labor and material in spite of slight variations. Why the plaintiff cannot show excuse for non-pro­duction of an architect’s certificate under the Corn-men Counts to show a recoverable indebtedness for value received Is not entirely clear. Expanded

(V) Where the Contract is Merely Void (Not %llega7), or Merely Unenforceable, or Voidable and has been Avoided, there may be a Recovery in General Assumpsit for Part Performance—If the Special Contract, which the plaintiff has Partially Performed, is void (not illegal), or unenforceable, or voidable and has been avoided by the plain­tiff or defendant, General Assumpsit may be maintained for the Partial Performance. This rule, as is indicated in the note below, is subject to some qualification.15
Metal Fireproofing Co. v. Boyce, 233 III. 284, 84 NE. 275 (1908). Compare Peterson v. Pusey, 237 III. 204, 86 N.E. 692 (1910). See, also, Catholic Bishop of Chicago v. Bauer, 62 III. 188 (1811); City of Elgia v. Joslyn, 136 III. 525, 26 N.E. 1000 (1891); Parmly v. Farrar, 169 III. 606, 48 N.E. 693 (1897); Concord Apartment House Co. v. O’Brien, 228 Ill, 360, 309, 81 N.E. 1038 (1007).
It is otherwise in case Full Performance has been pre­vented by act of the defeadant. Illinois: Catholic Bishop of Chicago V. Bauer, 62 lii. 188 (1871);

Michigan: Mooney v. tori; Iron Co., 82 Mich. 263, 40 NW. 376 (1890). And on Substantial Perform­ance, see Evans v. Howell, 211 lii. 85, 71 NE. 85-1 (1904).


18. Thurston v. Percival, I Pick. (Mass.) 415 (1823).
Thus, where an infant performs services under a Coa­tract, which he has a right to avoid because of his infancy, and lie avoids the Contract before he has Fully Performed, he may bring General Assnmnpsit for the services rendered. Illinois: Bay v. Italics, 52 III, 485 (1809); Massachusetts: Moses v. Stevens, 2 Pick. (Mass.) 332 (1824); Gaffney v. Hayden, 110 Mass. 137, 14 Am.Rep. 580 (1872); Now York; Mcd-bury V. Watrons, 7 Hill (N.Y.) 110 (1845); Vermont:

Price v. Furman, 27 Vt. 268, 65 Am.Dcc. 19-1 (1855).


And generally, where a person who has Partly Per­formed a Contract rescinds it on the ground of fraud, undue influence, duress, or for want or failure of consideration, or want of capacity to contract, or because of a Breach of the Contract by the other party operating as a discharge, he may recover in General Assumpsit for his Part Performance. Clark, Handbook of the Law of Contract, c. 12, Quasi-Contracts, 650 (3d ed. by Throekmorton, St. Paul 1914). See, also, the following eases: English:

Plinehe v. Colburn, S Bing. 14, 131 Eng.Itep. 305 (1831); Ex parte McClure, LII. 5 CkApp. 737 (1870); 1t,jssell v. Bell, 10 M. & W. 840, 152 Eug. Rep. 500 (1842); Illinois: Citizens Gaslight & Heat­ing Co. v. Granger, 118 Ill. 266, 8 N.E. 770 (1886); T. W. & W. B. Co. v. Chew, 67 Ill. 378 (1873); Kan­

342

Sec. 174 ACTION OF JNDEBITATUS ASSUMPSIT



(VT) Where Additional Work has been done on Request in Performing a Special
sas: Shanc v. Smith, 37 Ran. 55, 14 P. 477 (1877);

Massachusetts: Caffney v. hayden, 110 Mass. 137, 14 Am.Hep. 580 (1872); Williams v. Bemis, 108 Mass.

91, 11 Arn.Ilep. 318 (1871); Michigan: Aidine Mfg. Co. v. Barnard, 81 Web. 632, 48 NW. 280 (1891);

Minnesota: Brows v. St. Paul, II. & M. 13-. Co.. 36 Minn. 236, 31 NW. 041 (1886); Mississippi; Evaims v. Miller, 58 Miss. 120, 38 Am.Iiep. 313 (1880); New York: Mcdbury v. Watrous, 7 Hill (N.Y.) 110 (1845); Wi]]son v. Force, 6 Johns. (N.Y.) 110, 5 Am.Dec. 195 (1810); Goodwin v. Griffis, 55 N.Y. 629 (1882); Pennsylvania; Seipel v. International Life Ins. & Trust Co., 84 Pa. 47 (1877); Wisconsin: Walker v. Duncan, 08 Wis. 624, 32 NW. 689 (1887). As to the qualifications of this rule, see Clark, Handbook of the Law of Contracts, r. 12, Quasi-Contract, 650 (3d ed. by Throekmorton, St. Paul 191-1).


If the Special Contract is void because it is illegal, in that it is contrary to public policy, or in viola­tion of the Common Law, or of a Statute, neither of the parties, if in part delicto, can recover from the other for a Partial Performance. Clark, hlaad. hook oa the Law of Contracts, e. 12, Quasi-Con­tracts, 650 (3d ed. by Throckiuorton, St. Paul 1914).
When an agreement is not illegal, but merely void, or unenforceable, as where it fails to comply with the Statute of Frauds, or is made ultra vircs by a cor­poration, or for any other reason, and one of the parties refuses to perform his part after Perform­ance or Part Performance by the other, the Law will create a Promise to Pay for the benefits re­ceived. If a man delivers goods or perferrns serv­ices for another under a centract which is thus void ~r unenforceable, but not illegal in the sense of being unlawful, he may recover in General Assump­sit the value of the goods or services. Alabama:

Smith v. Wooding, 20 Ala. 324 (1852); Arkansas:

Walker v. Shaekelferd, 40 Ark. 503, 5 SW. 887, 4 Arn.St.Rep. 01 (1887); ~•alifornia: Patten v, Hicks, 43 Calif. 509 (1872); Itebmaa v. San Gabriel Valley Land & Water Co., 95 Calif. 390, 30 P. 564 (1894);

Illinois: McGinnis v. Fernandes, 126 III. 228, 19 N. E. 44 (1888); Indiana: Sehoonover v. Vachon, 121 md, 3, 22 N.E. 777 (1889); Miller v. Eldridge, 126 InC. 461, 27 N.E. 132 (1891); Kansas: Wonsettler

-v. Lee, 40 Ran. 367, 19 P. 862 (1888); Kentucky:

Montague v. Garnett, 3 Bush. (Ky.) 297 (1867);

Maryland: Baker v. Lauterbach, 68 Md. 64, 11 A. 704 (1887); Massachusetts: Van Deusen v. Blum, 18 Pick. (Mass.) 229, 29 Am.Dec. 582 (1836); Michigan:

Wbipple v. Parker, 29 Mich. 369 (1874); Nugent v. Teachout, 67 Mich. 571, 35 NW. 254 (1587); Cad-man v. MarkIe, 76 Mieh. 448, 48 NW. 315, 5 LEA. 707 (1889); Nevada: Lapham v. Osborne, 20 Nev.

168, 18 P. 881 (1881); New York: Little v. Martin, 3 Wend. (N.Y.) 210, 20 Am.Dee. 688 (1829);

Contract.—T1 the Special Contract has been Fully Performed by the plaintiff, and some­thing additional has also been done by him under circumstances entitling him to com­pensation therefor, the Declaration may be Special, as far as the Express Contract goes, and General as to the extras.’°

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