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INDEBITATUS ASSUMPSJT DISTINGUISHED FROM AND CONCURRENT WITH

OTHER ACTIONS


174. Indebitatus Assumpsit is in general a substitute for Debt on Simple (Executed) Con­tract; it was not, however, as broad as Debt, as it was not available on a Specialty, a Record or a Statute, in general, It was distinguished from Special Assuiupsit which lay for Breach of an Express Contract, whereas Indebitatus Assumpsit lay for the recovery of a debt or an obligation akin to a debt. The Action was Concurrent with Debt, Special Assumpsit and Trover, under certain circumstances, and sub­ject to certain necessary qualifications.

IT is essential that the distinctions between Indebitatus Assumpsit and other actions should be clearly understood. It is frequent­ly said that Indebitatus Assumpsit is a sub­stitute for Debt on Simple (Executed) Con­tract. For all practical purposes this is true, but in order to be technically correct, the statement requires some qualification, as strictly speaking, Indebitatus Assumpsit dif­fered from Debt in that it might be main­tained in situations where the sum alleged to be due was not susceptible of precise proof,2° as required in Debt; it could be used to re­cover installments of a debt which in its en­tirety was not yet due; 21 and it lay against


Texas: Steven’s Ex’rs v. Lee, 70 Tex. 279, 8 SW.

40 (1888); Wisconsin: Ellis v. Cary, 74 Wis. 176, 42

NW. 252, 4 L.B.A. 55, 17 Am.8t.Eep. 125 (1882).
10. Nesv York: Dubois v. Delaware & H. Canal Co., 4

Wend. (N.Y.) 285 (1830); Id. 12 Wend. (N.Y.) 334

(1834); South Carolina: MeCerniick v. Connoly, 2

Bay (S.C.) 401 (1802).


20. Vaux v. Mainwaring, Fort. 197, 92 Eng.Rep. 816 (1714).
21. Rudder v. Price, 1 B1.H. 547, 126 Eng.Hep. 814

343


(1791).

I

an Executor or Administrator, against whom Debt would not lie under the Early Common Law where the testator had the right to de­mand Trial by Wager of Law.22 However, until Debt was extended to cover obligations which were not certain, but which might be reduced to certainty by averment or proof, Debt was not a remedy for Obligations sim­ilar to but not identical with a True Common-Law Debt, and IIOW known as Quasi-Con­tractual Obligations. And while Indebitatus Assumpsit would usually lie where Debt would lie, the converse was not true. As Dean Ames has pointed out, there were many cases where Assumpsit was the only remedy, as the benefit received did not constitute a Real Debt or a Real Contract.23


In a certain sense, however, Debt was broader than Indebitatus Assumpsit, as the latter action would not lie on a Specialty, a Record, or a Statute, generally; Indebitatus Assumpsit was a substitute for Debt original­ly only in the Field of Debt on Simple (Exe­Cuted) Contract; and in the sense that orig­inally Debt was not available on Quasi-Con­tractual Obligations, whereas Indebitatus As­sumpsit would lie, the latter action might be said to be broader than the former.
Special Assumpsit was an action to recover Damages for the Breach of an Express Con­tract, whereas Indebitatus Assumpsit was an action to recover a Common-Law debt, and finally, to recover obligations akin to debts, but not quite identical therewith.
But as we have seen, Indebitatus Assump­sit and Debt were concurrent in the field of Debt on Simple (Executed) Contract, and Indebitatus Assumpsit may and frequently is concurrent with Special Assumpsit, where, over and above the Simple, Executed Con­tract, which supports the former action,
22. On the present validity of this distinction, see Ohildress v. Emory, 8 Wheat. (U.S.) 642, 5 L.Ed. 705 (1823).

CIt. 17
there is also an Express Promise, which has been Breached. And in such a case it may be eminently judicious to so frame the Decla­ration in Assumpsit as to permit the plaintiff to avail himself of either basis of liability. This result may be attained by declaring in a Special Count upon the Actual or Express Contract and thereafter adding one or more Common Counts, covering the meritorious services the rendition of which may be proved.


Moreover, under certain circumstances, In­debitatus Assumpsit is a concurrent remedy with Trover. Thus, where a defendant has taken and converted the chattels of the plain­tiff amid sold them, at his Election, the plain­tiff may sue in Trover for the Conversion, or he may Waive the Tort, and sue in Indebita­tus Assumpsit on a Count for Money Had and Received.

FORMS OF DECLARATIONS IN INDEBITA­TUS ASSUMI’81T24

COMMON Coupcr FOR GOODS Sow AND
DELIVERED ~
FOR that, whereas, the said C.D. hereto­

fore, to wit, on the day of


24. For the distinctions between the various Common Counts, seo Section 176 on the Common Counts.

U. Atwootl v. Lucas, 53 Me. 508, 89 Aia.Dcc. 713 (1808).

In an Action for Goods Sold and Delivered where re­covery Is based on the Common Counts, the evi­dence must show a delivery of the goods alleged to -

344 OFFENSIVE PLEADINGS

175. In this Section will be found the fol­lowing Forms: Forms of Common Counts in Indebitatus Asswnpsit, including the Common Count for Goods Sold and Delivered, the Com­mon Count for Work and Labor, the Common Count for Money Lent, the Common Count for Money Paid, the Common Count for Money Had and Received, the Quantum Valebant Count, the

Quantum Mcruit Count, and the Count for an Account Stated. A Form of the Common Breach is set out after the Common Counts, a Separate Breach being always assigned to each Count, as each is a separate and complete statement of a Cause of Action.

23. Ames, Pare! Contracts Prior to Assunipsit, 8

Harv.L.Rey, 252 (1894).

See. 175

ACTION OF INDEBITATUS ASSUMPSIT

345

A.D. 17_, at , in the county of ______ was indebted to the said A.B. in the sum of dollars, for divers goods, wares and merchandises by the said A.B. before that time sold and delivered to the said C.D. at his special instance and request; and being so indebted, he, the said C.D., in consideration thereof, afterwards, to wit, on the day and year aforesaid, at ___, afore­said, in the county aforesaid, undertook and faithfully promised the said A.B. to pay him the said sum of money when he, the said CD., should be thereto afterwards requested.


SHIPMAN, Handbook of Common-Law Pleading, c. XI, 260 (3d ed. by Bal­lantine, St. Paul 1923).

COMMON COUNT FOR WORK AND LABOR


AND whereas, also, the said C.D. after­wards, to wit, on the day and year aforesaid, at , aforesaid, in the county afore­said, was indebted to the said AS. in the farther sum of dollars1 for work and labor, care and diligence by the said AS. before that time done, performed and be­stowed in and about the business of the said C.D., and for the said C.D., at his like in­stance and request; and being so indebted, lie, the said C.D., in consideration thereof, afterwards, to wit, on the day and year afore­said, at , aforesaid, in the county aforesaid, undertook and faithfully promised the said A.B. to pay him the said last-men-
have been sold. fleeb v, troiv~on, 106 Ill.&pp. 518 (1015).
A Count for Goods Bargained and Sold will lie where title has passed to the defendant without delivery.

Illinois: Seehel y. Scott, 66 111. 106 (1872); West

Virginia: Acme Food Co. v. Older, 04 W.Va. 255, 61 S.E. 235, 17 L.R.A. (N.S.) 807 (1908). See, also, 1 Cuitty, Treatise on Pleading and Parties to Actions with Precedents and Forms, c. IV, Of the Declara­tion, 347 (16th Am. ed. by Perkins, Springfield 1876).

tioned sum of money when he, the said CD. should be thereto afterwards requested.


SHIPMAN, Handbook of Common-Law Pleading, c. Xl, 261 (3d ed. by Bal­lantine, St. Paul 1923).

CoMMoN COUNT FOR MONEY LENT


AND whereas, also, the said Ci). after­wards, to wit, on the day and year aforesaid, at , aforesaid, in the county afore­said, was indebted to the said A.B. in the farther sum of dollars, for so much money by the said AS. before that time lent and advanced to the said CD,, at his like instance and request; and being so in­debted, he, the said C.D., in consideration thereof, afterwards, to wit, on the day and year aforesaid, at , aforesaid, in the county aforesaid, undertook and faithfully promised the said A.B. to pay him the said last-mentioned sum of money when he, the said C.D., should be thereto afterwards re­quested.
SHIPMAN, handbook of Common-Law Pleading, c. XI, 261 (3d ed. by Bal­lant’mne, St. Paul, 1923).

COMMON COUNT FOR MONEY PAm


AND whereas, also, the said CD. after­wards, to wit, on the day and year aforesaid, at , aforesaid, in the county afore­said, was indebted to the said AS. in the farther sum of dollars, for so much money by the said AS. before that time paid, laid out, and expended to and for the use of the said C.D., at his like instance and request; and being so indebted, he, the said C.D., in consideration thereof, afterwards, to wit, on the day and year aforesaid, at

aforesaid, in the county aforesaid, undertook and faithfully promised the said AS. to pay him the said last-mentioned sum



346

OFFENSIVE PLEADINGS

Ch, 17

of money when he, the said CD., should be thereto afterwards requested.


SHIPMAN, Handbook of Common-Law Pleading, c. XI, 261 (3d ed. by Bal­lantine, St. Paul, 1923).

COMMON COUNT FOrt MONEY HAD AND RECEIVED


AND whereas, also, the said C.D. after­wards, to wit, on the day and year aforesaid, at , aforesaid, In the county aforesaid, was indebted to the said A.B. in the farther sum of dollars, for so much money by the said C.D. before that time had and received to and for the use of the said AS.; and, being so indebted, he, the said C.D., in consideration thereof, afterwards, to wit, on the day and year aforesaid, at , afore­said, in the county aforesaid, undertook and faithfully promised the said A.B. to pay him the said last mentioned sum of money when he, the said C.D., should be thereto after­wards requested.
SHIPMAN, Handbook of Common-Law Pleading, c. XI, 261 (3d ed. by Bal­lantine, St. Paul, 1923).
QUAIc’ruM VALEBANT COUNT IN Ass UMPSIT
AND whereas, also, on the day last above mentioned, at the county aforesaid, in con­sideration that the plaintiff, at the request of the defendant, had before that time sold and delivered (or bargained and sold, as the ease may be) to the defendant, divers other goods, chattels, and effects, the defendant promised the plaintiff to pay him, when requested, so much money as the last-men­tioned goods, chattels, and effects, at the time of the sale and delivery (or bargain and sale, as the case may be) thereof were reasonably worth, and the plaintiff avers that the same were then and there reason­ably worth the sum of dollars, where-

of the defendant, on the day last aforesaid, there had notice.


SHIPMAN, Handbook of Common-Law Pleading, c. XI, 263 (3d ed. by Sal­lantine, St. Paul, 1923).
QUANTUM MERUIT AssuMr’SIT COUNT
FOR that, whereas, the defendant hereto­fore, to wit, on the day of ______ in the year , at the county aforesaid, in consideration that the plaintiff, at the request of the defendant, had done certain labor and services for him, etc. (stating the subject-matter according. to the fact, and conclude as follows):
The defendant promised the plaintiff to pay him, on request, so much money as he therefor reasonably deserved to have, and the plaintiff avers that he then and there reasonably deserved to have thereby the sum of ~_.. dollars, whereof the defend­ant then and there had notice.
SHIPMAN, Handbook of Common-Law Pleading, c. XI, 262 (3d ed. by Bal­lantine, St. Paul, 1923).

FORM OF COUNT FOR ACCOUNT

STATED

AND whereas, also, the said C.D. after­wards, to wit, on the day and year aforesaid, at , aforesaid, in the county afore­said, accounted with the said AS. of and concerning divers other sums of money from the said C.D. to the said A.B. before that time due and owing and then in arrear and unpaid; and upon that account the said C.D. was then and there found to be in arrear and indebted to the said AS. in the farther sum of dollars; and being so found in arrear and indebted, he, the said C.D., in consideration thereof, afterwards, to wit, on the day and year aforesaid, at _______ af ore-said, in the county aforesaid, undertook and faithfully promised the said A.B. to pay him



Sec. 176

ACTION OF INDEBITATTJS ASSTJMPSIT

347


the said last-mentioned sum of money when he, the said CD., should be thereto after­wards requested.
ST-IIPMAN, Handbook of Common-Law Pleading, c. XI, 262 (3d ed. by Bal­lantine, St. Paul, 1923).
COMMON BREACH
[The Declaration concludes with the Com­mon Breach, which follows each Common Count]
YET the said C.D., not regarding his said several promises and undertakings, but con­triving and fraudulently intending, craftily and subtilly, to deceive and defraud the said A.B. in this behalf, hath not yet paid the said several sums of money, or any part thereof, to the said AR, although often­times afterwards requested; but the said CD. to pay the same, or any part thereof, hath hitherto wholly refused, and still re­fuses, to the damage of the said A.B. of

dollars; and therefore he brings his suit, etc.


Attorney for

Plaintiff.


SHIPMAN, Handbook of Common-Law Pleading, c. XI, 262 (3d ed. by Bal­lantine, St. Paul, 1923).
THE COMMON COUNTS2°
176. The Common Counts are certain formu­lae for alleging an indebtedness founded on various transactions, such as a loan of money,
26. In genera), on the Common Counts in Indebitatus or General Assumpsit, see:
Treatises: Evans, Essays: on the Action for Money Had and Received; and on the Law of Insurances (Liverpool 1502); 2 Chitty, A Treatise on Pleading, The Common Counts, 27—83 (3d Am.Ed. by Dunlap, Philadelphia 1810): Pomeroy, Code Remedies, c. III, §1 443-449 (4th Ed. by Bogle, Boston 1904); Martin, Civil Procedure at Common Law Appendix, Note I. General Assumpsit for Part Performance of Ex­press Contracts, 341-349 (St. Paul 1905); Shipman, Handbook of Common-Law Pleading, c. VIII, Action

the sale of goods, the doing of work and labor, or the stating of an accounL They cover both Common Law Debts and Quasi-Contractual Ob­ligations similar to but not quite identical to Common Law Debts.
BROWN27 states that “the Common Counts were not formerly in use, and Lord Holt used to say that he was a bold man who first ventured on them, though they are now every day’s experience.”
in General

IN Indebitatus or General Assumpsit the action is based, not on an Express or Special Promise, but on a Promise Implied by Law from the existence of a duty to pay money, arising either from a debt created by a Sim­ple, Executed Contract or from an Obligation raised by Quasi-Contract. Like Debt, for which it was a substitute in certain areas, it specifically enforces the unconditional duty to pay money. Indebitatus or General Assumpsit lies upon a debt arising from the passage of a quid pro quo from the plaintiff to the defendant, upon a debt arising from a Contract Implied in Fact, and which has been Executed, leaving nothing to be done


of Assumpsit (Special and General), §~ 59—60, Gen­eral Assumpsit or the Common Counts, 154 (3d Ed. by Ballantine, St. Paul 1923); Fifoot, History and sources of the Common Law, c. 15, The Subsequent Development of Assumpsit, D. The Common Counts, 368—371 (London 1949).
Articles: Ames, The History of Assumpsit, 3 Select Essays in Anglo-American Legal History, Pt. vi, 259 (Boston 1909); King, The Use of the Common Counts In California, 14 So.Caiif.L.Rev. 288 (1041).
Comments: Pleading: Sufficiency of the Common counts, 4 Calif.L.Eev. 352 (1910): Quasi-Contracts-— Assumpsit for Use and Occupation Against a Tres­passer In Modern Cases, 30 Mieh.L.Rev. 1087 (1932):

Pleadlng-Comp1aint~Common Counts in Assusepsit Followed by Allegations of Promise to Pay, 21 Minn. LIter. 756 (1037).


AnnotatTon: Previous Debtor and Creditor Relation­ship a Condition of Account Stated, 6 A.L.R.2d 113 (1949).
21. Browne, A Practical Treatise on Actions at Law, e. VI, Forms of Action, § I, The Common Counts in

General, 345 (Philadelphia, 1844).

348

OFFENSIVE PLEADINGS

Ch. 17

but pay the debt, and upon a debt arising from a Contract Implied in Law, and known as Constructive or Quasi-Contract.


And, in setting forth his Declaration, the pleader need not indicate which variety of Implied Contract—in fact or in law—he re­lies upon. But as the Executed Considera­tion is an indebtedness, and the Promise alleged to have been broken is one legally resulting from the fact of such indebtedness, the Proof at the Trial must show a debt. It follows, therefore, that the action in reality is one for the recovery o a Money Debt, due upon a Simple (Executed) Contract, such, for example, as upon the sale of goods, or lands,28 for rendition of services, for work, labor and materials, or on an Account Stated, as well as other similar transactions resulting in the enrichment of the defendant at the plaintiff’s expense.
If a person requests another to do work for him under such circumstances that the other has a right to expect pay therefor, and the latter does the work, the Law will, as an Inference of Fact, Imply a Promise by the former to pay what the services were reason­ably worth, and the action to recover such compensation is General Assumpsit. So, if a man orders goods from another without an Express Promise to Pay a certain price, and they are delivered, the seller may maintain Ceneral Assumpsit to recover their value. So, if a person pays money which another should have paid, he may maintain General Assumpsit against the latter to recover it, such a Count being known as a Count for Money Paid by the plaintiff for the use of the defendant. And where a man receives money which in equity and good conscience belongs to another, the latter may sue in General Assumpsit to recover, this Count being known as the Count for Money Re­
2$. Michigan: Nugeut v. Teachout, 67 Mich. 571, 35 N.W. 254 (1887); New York: Nelson v. Swan, 13 Johns. (N.t) 483 (1816).

ceived by the defendant for the use of the! plaintiff, or for Money Had and Received. And where a man lends money to another without an Express Promise by the latter to repay it, he may recover the debt in Gen­eral Assumpsit on a Count for Money Lent. And if parties state an account between them, General Assumpsit lies for the balance, the Count being known as a Count for a balance due on Account Stated. General As­sumpsit is also known as the Common Counts. The Common Counts are riot suited to enforce Collateral Undertakings, Guaran­ties, and Contracts of Indemnity.


Recovery on a fire insurance policy cannot be had on the Common Counts, as payment of the premiums is not sufficient of itself to constitute a quid pro quo or raise an Implied Promise. Accordingly the Promise itself and the conditions thereof must be specifically set forth. But in case of adjustment of the loss this makes an Account Stated, and the Implied Promise to Pay the amount due is regarded as a different Contract from the Policy itself, which may be enforced by the Common Counts.2°

Varietiea of Common Counts

THE Common Counts in Indebitatus or General Assumpsit have generally been classified as including (1) The Indebitatus


29. Beifron v, Rochester German Ins. Co., 220 1]?.

514, 77 N.E. 202 (1906).


The Common Counts will not lie against a guarantor who receives no direct personal benefit. Florida:

Worley V. Johnson, 60 na. 294, 53 So. 543, 33 LILA. (N.s.) 039 (1006), Involving an Indorser; Illinoisr Potter v. Gronbeek, 1)7 Ili. 404, 7 N.E. 586 (1886). Cf. Abe Lincoln Mut, Life & Accident See. v, Miller, 28 Ill.App. 341 (ISS1), holding that Debt lies by the beneficiaries to recover & death benefit under a mu­tual benefit insurance certificate; Federal: Cubbi us v. Mississippi Liver Commission, 241 U.S. 861, 3G SIt 671, 60 I.J~d. 1041 (1915). See, also, Ames, Pa-rot Contractt~ Prior to Assumpsit, S Ilarv.L.Rev. 252 at 261 (1894).



Sec. 176 ACTION OF INDEBITATUS ASSUMPSIT 349
Counts; and (2) The Quantum Meruit and Counts; and (3) The Account Stated, as will Quantum Vaiebant Counts—the Value appear from the chart below:

TUE CLASSIFICATION OF TUE COMMON COUNTS 30


1. For money paid to the defendant’s use.

A. MONEY 2. For money had and received.

COUNTS: 3. For money lent.

4. For interest due.

5. For money found to be due



on account stated.

1. ~~E~ATUS 6. For use and occupation

U . ofland.

7. For board and lodging.

8. For land sold and con­

veyed.

9. For goods sold and de.

B. OTHER livered.

COUNTS: 10. For goods bargained and

sold.


11. For work, labor and ser­

vices.
12. For work, labor and ma­terials.


13. Any other circumstances

GENERAL on which a debt may be

ASSUMPSIT -

OR THE 2. VALUE A. QUANTUM

COMMON COUNTS: MERUIT

COUNTS COUNTS:

B. QUANTUM


VALEBANT
COUNTS:

ACCOUNT This Count, for money found to be due on an account

STATED: stated, is also classified as an Indebitatus Count, as set out above in chart.


This chart iø adopted from that found in MOKELVEY, Principles of Common Law Pleading,
~ ~ § ~ P. 27 (New York 1894), with certain additions and modification..
30. See Note 30 on page 850.

(I) The Indebitatus Counta—In an In­debitatus Count in Assumpsit, the most com­prehensive of all, the plaintiff alleges that the defendant, on a certain day, at a certain place, was indebted to him in a certain sum, for a certain described Cause or Considera­tion furnished by the plaintiff, and stating the Consideration ~ to have been furnished at the special instance and request of the defendant.32 In general, time and place are immateriaL-33 If the suit is in a Court of In­


30. OrLuim of the Common Counts: “In declaring in Debt, except possibly upon an Account Stated, the plathti~ was required to set forth his cause of ac­tion with great particularity-. Thus, the Count in Debt must state the quantity and description of goods sold, with the details of the price, all the par­ticulars of a loan, the names of the pe,’sons to whom the money was paid with the amounts of each payment, the namcs of the persons from whom money was received to the use of the plaintiff with the amounts of each receipt, the precise nature and amount of services rendered. Ta Indebitatus As­sumpait, on the other band, the debt being laid as an Inducement or Conveyance to the Assumpsit, it was not necessary to set forth all the details of the transaction from which it arose. It was enough to allege the general nature of the indebtedness, as for goods sold, money lent! money paid at the defendant’s request, money bad and received to the pIaft~tiff’s use, work and labor at the defendant’s re­quest, or upon an Account Stated, and that the de­fendnnt being so indebted Promised to Pay. This was the origin of the Common Counts.” Ames! Lec­tures on Legal flistory, e. XIV, Implied Assurnp­sit, 153, 154 (Cambridge, 1913).
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