31. Shipman, Uandbook of CommomLaw Pleading, c.
XI, The Declaration in Contract Actions, § 123,
Statement of an Executed Consideration, 255, 256
(3rd ed. by Ballantine, St. Paul, 1022).
32. Victors v, Davis, 12 11. & W. 758, 152 Eng.Rep.
A Declaration In Indebitatus Assusepsit Is good Ca General Demurrer, evcn though it states neither time, place, nor a request to pay. Keyser v. Shafer, 2 Cow. (N.Y.) 437 (1823).
And consequently, in those states where special Demurrers have been abolished, it would seem that the Allegation of some of these facts would be unnecessary, though it is certainly the better practice to allege them. Alabama: McCrary v. Brown, 157 Ala. 518, 50 So. 402 (1909); Illinois: MeEwen V. Morey, 60 III. 32 (1871).
ZZ, See Langer v. Parish, 8 Serg. & It. (Ps.) 134 (1822),
3&. Webber v. Th’fll, 2 Wms. Saund. 121, 122, n. 3, 86 Engdtep. 840, 541 (1669).
30. Hibbert v. Courthope, Carth. 276, 00 Eng.Rep. 764 (1602).
It is not necessary, however, to give a particular description of the work done, or the goods sold, etc. Lewis v. Cnlbertson, 11 Serg. & B. (Pa.) 49, 14 Am. Dee. 607 (1824). See: Michigan: Crane v. Grass-man, 27 t.Iieh, 443 (1573); Federal: Edwards v. Nichols, 3 Day (Conn.) 16, Fed,Cas.No.4,296 (1808).
37- Alabama: McCrary v. Brown, 157 Ala. 518, 50
So. 402 (1900); Connecticut: Canfield v. Morrick, 11
Conn. 425 (1830); Massachusetts: 1.laasachusetts
Mut Life Ins. Co. v. Green, 185 Mass. 306, 70 N.E.
202 (1904). Cf. West Virginia: Somerville v. Grim,
17 W.Vo. 803, 810 (1881).
The statement that money was “lent” implies that it was advanced at the request of the defendant. But this does net apply to money “paid.” English: victors v. DavIs, 12 M. & W. 758, 152 Eng.Itep. 1405 (1844); West Virginia: Somerville v. Grim, 17 W. Va. 803, 810 (1881).
And the same is true of a Count for Goods Sold and Delivered. MeEwen v. Morey, 60 lB. 32 (1871).
350 OFFENSIVE PLEADINGS Ch. 17
ferior Jurisdiction, the Declaration should allege that the cause of action arose within such Jurisdiction.5~ The sum stated in the Declaration is generally also immaterial, provided it be laid to cover at least the actual amount due;35 the cause of the debt, as well as the debt itself, should be included so as to ground a subsequent Flea of Res Judicata.3° And, of course, it must appear that the consideration for the debt was furnished at the Request of the defendant.” And these Indebitatus Counts were of two descriptions, Money Counts, and Other Counts.
(A) The Money Counts—The Money Counts relate only to Money Transactions as the basis of the debt, while the other Counts relate to any transaction other than a Money Transaction upon which a debt may be founded. These Counts, in the order listed in the chart above, will now be separately considered.
~4. This requirement is in addition to the of the County as Venue Massachusetts:
President, etc., of Nantucket Bank, 5 (1S09)~ New York: Wetmore v. Baker, 9 ‘L) 307 (1812); Virginia: Thoraton v. Wash. (%‘a.) 81 (1792).
statement Briggs vMass. 90 3obns. (N. Smith, 1
and cases thete cited.
ACTION OF INDEBITATUS ASSUMPSIT
(1) The Count for Money Paid to the Defendant’s Use.—The theory underlying this Count is that where one person allows or requests another to assume such a position
that the latter may be and is compelled to discharge a legal liability of the former, the Law creates or implies a request of the former to the latter to make the payment, and a Promise to repay him thus Implied, and the liability thus created may be enforced by an action of Indebitatus Assumpsit. As indicated by the heading such an action is technically called an action for money paid by the plaintiff for the use of the defendant; and in order to maintain a Count for Money thus Paid, it was necessary for the plaintiff to show, first, a payment in money, and seeondly, such payment must have been paid at the defendant’s request. And money must actually have been paid; a security such as a bond, or even stock, is not sufficient,~ This Count will lie where a party has been compelled to pay a debt that another should have paid. Thus, where a member of a firm gave a Promissory Note, signed in the partnership name for a debt of his own, and his partner was compelled to pay it, it was held that the latter might recover from the former as for Money Paid to his use.3° And the same rule applied where one of several sureties, or other joint debtors, pays the whole debt. In such case he is allowed to recover from each of the others his proportionate share; and a Request to Pay and a Promise to Pay are feigned, in order to entitle him to the remedy by an Action of Indebitatus Assumpsit.4° The
38. English: Taylor v. Higgins, 3 East. 169, 102 Eng. Rep. 562 (1802); Jones v. Brluley, 1 East. 1, 102 Eng.Rep, 1 (1800).
Cross v. Cheshire, 7 Exeb. 43, 155 Eng.Rep. 848 (1851),
40- English, Kemp v. Fender, 12 M. & W. 421, 152 Eng.Rep. 1262 (1544); Illinois: Harvey v. Drew, 82 III. 606 (1876); Massachusetts: Nickerson v. Wheeler, 118 Mass. 295 (1875); New York: Doremus v.
same is also true where a surety pays the debt of his principal.4’ Where the money was illegally paid the Count will not lie.42
(2) The Count for Money Had and Received.43—The theory of this Count is that whenever one person has received money to which another person, in justice and good conscience, is entitled, the Law creates or Implies a Promise by the former to pay it to the latter, and an Action of Assutnpsit will lie to enforce this liability on the basis of the Fictitious Promise.~~ The action is techSelden, 19 Johns. (N.Y.) 213 (1821); Pennsylvania:
Steekel v. Stcekel, 28 Pa. 233 (1857).
Where several persons agree to contribute equally to certain expenditures, and one advances more than his share, the excess is so much paid for the use of the others and hence may be recovered in Indebitatus Assumpsit. Buck-master v. Grundy, 3 Gil. (Ill.) 626 (1840). Cf. Cram v. Hutehinson, 8 Tll.App. 179 (1880).
41. English: Alexander v. Vane, 1 M. & W. 512, 150 Eng,Itep. 537 (1836); Pownal v. Ferrand, 6 B. & C. 439, 108 Eng.Rep. 513 (1827); Maryland: Crisfielil v. State, to use of Hand, 55 Md. 192 (1880).
42. De Begnis v. Armistead, 10 Ring. 107, 131 Eng. Rep. 846 (1533).
43. See Brosvne, A Practical Treatise on Actions at
Law, c. VI, Forms of Actions, § 1, The Common
Counts in General, 345, 367—385 (Philadelphia 184-4);
Clark, Handbook on the Law of Contracts, e. 12,
Quasi-Contract, 630 (3d ed. by Throekmorton, St.
Paul 1914), for a collection of the eases a,id discussion of the doctrine.
44. Moses v. Macferlan, 2 Burr. 1005, 97 EngRep.
676 (1760). See, also, the following eases: Illinois:
Bradford v. City of Chicago, 25 Ill. 411 (1861);
Creel v. Kirkham, 47 III. 344 (1868); Watson ;‘.
Woolverton, 41 ilL 241 (1866); Johnston v. Salisbury, 61 Ill. 316 (1846); Trumbull v. Campbell, 3
Gil. (IlL) 502 (1846); Devine v. Edwards, 101 Ill.
138 (1881); Bennett v. Connelly, 103 Ill. 50 (1882);
Gloyd v. Hotel La Salle Co., 221 Ill.App. 104 (1921):
Maryland: Vroonlan V. McKaig, 4 Md. 450, 59 Am.
Dee. 85 (1853); Massachusetts: Floyd v. Day, 3
Mass. 403, 3 Am.Dec. 171 (1807); Mason v. Waite,
17 Mass. 560 (1822); Arms v. Ashley, 4 Pick. (Mass.)
71 (1826); Michigan: Catlin v. Birehard, 13 Mieh.
nO (1865); Atkinson v. Scott, 36 Mieh. 18 (1877):
Brown v. School fist. No. 9 of Rutland, 36 Mich. 149
(1877); Walker v. Conant, 65 Mich. 194, 31 N.W.
786 (1887); Wright V. DIckinson, 67 Mich. 5S0, 35
NW. 164, 11 Am.St.Rep. 602 (1887); Loomis v.
Com.Law PIdg. fIB—la
OFFENSIVE PLEADINGS CIt 17
nically called an Action for Money Received by the defendant for the use of the plaintiff, or an Action for Money Had and Received.
Thus, where one person by means of duress, fraud, trespass, or any other tort, obbins another’s money, and converts it to his own use, or obtains his property and sells the same, and converts the proceeds, the other may Waive the Tort, and bring Assumpsit on a Promise, Created by Law, to repay the money so obtained.45 Or as was said:
“Thoughts much too deep for tears pervade the Court, When I AssumpO’Neal, 73 Inch. 582, 41 NW. 701 (1880); New
York: McCrea v. Purmort, 16 Wend. (N.Y.) 400, 30
Am.Dec. 103 (1835); Pennsylvania: Miller v, Ord, 2
Bin. (Pa.) 382 (1810); Barr v. Craig, 2 DalI. (Pa)
151, 1 LEd. 327 (1792); VIrginia: Johnson’s Ex’rs
v. Jennings’ Adm’r, 10 Grat. (Va.) 1, 60 Am.Dec. 323
(1853); Federal: Swift & C, & B. Co. v. United
States, 111 U.S. 22, 4 S.Ct. 244, 28 L.Ed. 341 (1884).
A Count for Money Had and Received win lIe only where defendant has received money or other value equivalent to morley, as a negotiable note. Thus, it lies against one who has fraudulently procured the surrender of his own note. Penobscot It. Co. v. Mayo, 67 Me. 470, 24 Am.Rep. 4o (1878).
Assumpsit will not lie for Money Received by the defendant for the rent of land, the title to which is claimed by the plaintiff, where Us claim is disputed, since the title to land cannot be tried in this form of action. Illinois: King v. Mason, 42 Il]. 223, 89 Ain.Dec. 426 (1866); Kran v. Case, 123 Ill.App. 214 (1903); Pennsylvania: Lewis v. Robinson, 10 Watts (Pa.) 338 (1840).
The owner of land may waive a Trespass thereon, and, a~rmIng the conversion, sue, in an Action for Money Had and Received, one who severs wood, ravel, or other parts of the realty, and transforms it into money, but only when title to the land is not in dispute. Arizona Commercial Mining Co. v. Iron Cap Copper Co., 236 Mass. 185, 128 NE. 4 (1920).
-45. Clark, Handbook on the Law of Contracts, e. 12,
Quasi-Contracts, 632 (3d ed. by Throckmorton, St.
Panl 1014). See, also, the following cases: English:
Atlee v. Backhonse, 3 14, & \V. 633, 150 Eng.Rep.
1298 (1838); Shaw v. Woodcock, 7 B. & 0. 73, 108
Eng.Rep. 652 (1827); Neate v. Harding, 6 Exch. 349,
135 Eng.Eep. 577 (1851); illInois: McDonald v.
Brown, 16 Iii. 32 (1854); Staat v, Evans, 35 III. 455
(1864); .&lderson v. Ennor, 45 Ill. 128 (1867); Stiles
v. Easley. 51 III. 275 (1869); Arnold V. Podson, 272
Ill. 377, 112 N.E. 70 (1916); Massachusetts: Jones
sit bring, and, Godlike Waive the Tort.” ~°
The Action will also lie to recover Money
Paid by Mistake of Fact,41 as where money is paid as due upon the basis of erroneous accounts, and, upon a true statement of account, it is found not to be due.48
v. Hoar, 5 Pick. (Mass.) 289 (1827); Gllrnore v. Wi!. bur, 12 Pick. (Mass.) 120, 22 Am.Dee. 410 (1831) Cooper v. Cooper, 147 Mass. 370 17 N.E. 892, 9 Am, StRep. 721 (1888); Michigan: Thompson v. Howard, 31 Web. 809 (1875); Farwell v. Myers, 64 Iflch. 234, 31 NW. 128 (1887); Loomis v. O’Neal, 73 Mieh.
582, 41 N.W. 701 (1889); New Hampshire: Carleton v. flaywood, 49 N.H. 314 (1870); New Jersey:
Cory v. Hoard of Chosen Freeholders of Somerset County, 47 N.J.L. 151 (1885); New York: People v. Wood, 121 N.Y. 522, 24 N.E. 952 (1890); Pennsylvania: Gray v. Griffith, 10 Watts (Pa.) 431 (1840); Hlndmarch v. Hoffman, 127 Pa. 284, 18 A. 14 (1889); Vermont: Stearns v. Dilllngham, 22 Vt. 624, 54 Am.Dec. 88(1830); Wisconsin: Kiewert v. Rinds’ kopf, 46 Win. 481, 1 NW. 163, 32 Am.Rep. 731 (1870).
4C~ Adoiphus, The Circulteers, An Eclogue, I L.Q.
11ev. 232 (1885); Versehures Creameries, Ltd. V.
Hull & Netherlands 5. 5. Co., [19213 2 KB. 608. It is a question of electing to proceed on alternative theories of liability, where an obligation and a tort liability arise from the same transaction.
47. Clark, Handbook on the Law of Contracts, e. 12,
Quasi-Contracts, 637 (3d ed. by Throekmorton, St.
Paul 1914). See, also, the following Cases: English:
Rue v. Dickason, 1 TB. 285, 99 Eng.Rep. 1097
(1756); IllInois: Stempel v. Thomas, 89 IlL 146
(1878); Devine v. Edwards, 101 III. 138 (1881);
Wolf v. Beaird, 123 III. 585, 15 N.E. 161, 5 Am.St.
Rep. 565 (1888); Board of Highway Com’rs v. City
of Bloomington, 253 Ill. 164, 97 N.E. 280, Ann.Cas.
1913A, 471 (1913); Maryland: Citizens’ Bank of
Baltimore v. Graffiin, 31 Md. 507, 1 Am.Rep. 66
(1869); Massachusetts: Stuart v. Sears, 119 Mass.
143 (1575); Michigan: Walker v. Conant, 65 Inch.
194,81 N.W. 786 (1887); New York: Mayer v. May
or. etc. of City of New York, 63 N.Y. 455 (1875);
Pennsylvania: Thomas v. Brady, 10 Pa. 164 (1848);
Cbambers v. Union Nat. Bank, 78 Pa. 203 (1875);
Rhode Island: Hazard v. Franklin lint. Fire Ins.
Co., 7 RI. 429 (1863).
48. English: flails v. Lloyd, 12 Q.B. 531, 116 Eag. Rep. 967 (1845); Townsend v, Crowdy, 8 C.H.N.S. 477, 141 Eng.Rep. 1251 (1860); Massachusetts: Stuart v. Sears, 119 Mass. 143 (1875).
ACTION OF INDEBITATUS ASSUMPSIT
The action will also lie to recover Money Paid on a Consideration which has failed,49 as in a case where the purchaser of goods has paid the price and the seller fails to deliver the goods; ~° or where the purchaser has paid for goods which did not belong to the seller, and which have been reclaimed by the real owner; ~‘ or, in most jurisdictions, where Bills, Notes, Bonds, Stock, or other securities have been sold and paid for, and they have turned out to be forgeries, or for some other reason to be worthless.59
(3) The Count f or Money Lent.—To susthin this Count, the plaintiff must show that there had been a loan, and of money. Thus, a loan of stock would not support the action,53
49. English: Newsome v. Graham, 10 B. & C. 234, 109
Eng.Rep. 437 (1829); Illinois: Haney v. Boyd, 30
Ill. 24 (1865); Graffenreid v. Kundert, 31 Ill.App.
394 (1889); Laflin v. Howe, 112 IH. 253 (1883)
Massachusetts: Claflin v. Godfrey, 21 Pick. (Mass.)
1 (1838); Earle v. Bickford, 6 Allen (Mass.) 549, 83
Am.Dec. 651 (1863); Michigan: Wright v. Dickinson. 67 Mich. 580, 35 NW. 164, 11 Am.St.Rep. 602
(1887); New York: Schwinger v. Hiekok, 53 N.Y.
280 (1873); Pennsylvania: Kauffelt v. Leber, U
Watts. & S. (Pa.) 93 (1845); virginia: Johnson’s
Ex’r v. Jennings’ Adm’r, 10 Oral. (va.) 1, 60 Am.
Dee. 323 (1858); Clark, Handbook on the Law of
Contracts, c. 12, QuaskContracts, 640 (3d ed. by
Throckmorton, St. Paul 1914).
50 Giles v. Edwards, 7 Tn. 181, 101 Eng.liep. 921) (1707).
51. English: Eicholz v. Bannister, 144 Eng.R~p. 284,
34 L.J.C.P. 105 (1804); Pennsylvania: Flook V. Robison, Add. (Pa.) 271 (1793).
“. English: Westropp v. Solomon, 8 CE. 345, 137
Engilep. 542 (1849); Illinois: Wilson v. Alexander,
3 Seam. (Ill.) 302 (1842); Tyler v. Bailey, 71 Ill. 34
(1873) ; Lunt v. Wrenn, 113 Ill. 168 (1885); Massachusetts: Claflin v. Godfrey, 21 Pick. (Mass.) 1
(1838); Michigan: Ripley v. Case, 56 Mich. 261, 49
NW. 46(1591); Pennsylvania: Kauffe]t v. Leber, 9
Watts & S. (Pa.) 03 (1845).
And money paid on a purchase of land to which the vendor and grantor has no title may be so recovered back. Demesmey v. Gravelin, 56 III. 93 (1870). Cf. Trinkle v. Reeves, 25 RI. 214, 76 Am.Dec. 793 (1861); Laflin v. Howe, 112 III. 253 (1855).
whereas a loan of foreign money woul&M The Count will lie where money has been delivered to a third party at the defendant’s request, provided credit was extended to the defendant, and he is the principal debtor, and not merely collaterally liable.55
And to establish a loan requires something more than a mere showing of a payment of money by the plaintiff; this alone raises a presumption of Law that such payment was in discharge of the debt and not by way of a loan.56 Of course such presumption is rebuttable by showing transactions between the parties from which a loan may be inferred.57 And naturally a Bill or a Note in the usual form will serve as evidence of money lent between the payee and drawer of the former, and the payee and maker of the latter58
(4) The Count for Interest Due.—The Common-Law rule as to when interest was
allowed was stated by Chief Justice Abbott in the case of Higgins v. Bargent,~~ decided in 1823, where he declared: “It is now established as a general principle, that interest is allowed by law only upon mercantile securities, or in those cases where there has been an express promise to pay interest, or where such promise is to be implied from the usage of trade or other circUmstances.” 00 There were some instances, however, not within the
scope of the statement above, where interest was allowed, as where money was awarded to be paid on a day certain, if the money had been demanded, provided the plaintiff pro-
M- Harrington v. Macmorris, 5 Taunt. 228, 128 Rug. Rep. 675 (1813).
55. Poole v. vabanes, S TB. 328, 101 Eng,Rep. 1410 (1799).
6~- Welsh v. Seaborn, I Stark. 474, 171 Eng.flep. 534 (1816).
57. Can’ v. Gerrish, 4 Esp. 0, 170 Eng.Rep. 624 (1801),
58. Morgan v, Jones, 1 C. & J. 162, 148 Eng.Rep. 1376 (1830).
~9. 2 B. & C. 348, 107 Eng.Rep. 414 (1823).
10. Higgins v. Sargent, 2 B. & C. 348, 349, 107 Eng.
Rep. 414, 415 (1823).
53- Nightingale v. Devisme, 5 Burr. 2580, 98 Eng.Itep.
ceeded by action? and not by attachment!~ In cases not falling within the first statement above, interest was in general not recoverable.
By a Series of Statutes, however, the Common-Law rules as to the allowance of interest have been considerably altered. This began with the Statute of 3 & 4 Wm. IV, c. 42, 73 Statutes at Large 280, enacted in 1833.
Section 28 provided that upon all debts or sums certain payable at a certain time or otherwise, the Jury (on the Trial or Inquiry) may allow interest, at a rate not exceeding the current rate, from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time; or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed front the date of such demand until the term of payment, provided that interest shall be payable in all cases in which it is now payable by law.
Section 29 provided that the Jury on the Trial or Inquiry may give Damages in the nature of interest over and above the value of the goods at the time of the conversion or seizure in all Actions of Trover or Trespass Dc Bonis Aspo-rtatis, arid over and above the money recoverable in all actions on policies of assurance made after the passing of the act.
Section 30 provided that if on Writ of
Error the Judgment be for the defendant, the
Court shall allow interest for such time as the
execution has been delayed by the Writ of
II-. Pinhorn v. Tuckington, 3 Camp. 488, 170 Eng.Rep. 1448 11813). For other instances, see Browre, A
Practical Treatise on Actions at Law, c. VI, Forms of Actions, ~ 9, Interest, 387 (Phlladelpbla 1844).
fl~ Churehe~ v. Stringer, 2 B. & Ad. 777, 109 Eng.Rep~
Statute 1 & 2 Viet. c. 110, § 17, 78 Statutes at Large 550 (1838), provided: “That every Judgment Debt shall carry Interest at the Rate of Four Pounds per Centum per Annum from the Time of entering up the Judgment, or from the Time of the Commencement of this Act in Cases of Judgments then entered up and not carrying Interest, until the same shall be satisfied, and such Interest may be levied under a Writ of Execution on such Judgment”
(5) The Count For Money Found to be Due on Account Statect—As this Count appears as the third major classification in The Classification of the Common Counts, it will be discussed below at that point, and not as one of the Indebitatus Counts, although it meets the requirements of an Indebitatus Count in the legal theory.
(B) Other Counts: (1) The Count for Use and Occupation of LandP—At Common Law the Action of Indebitatus Assumpsit was not available for Use and Occupation upon a quasi-contract.~ The reason for this as worked out by Dean James Barr Ames, was connected with the nature of rent. On a lease for years, reserving a rent, as well as on a sale of goods, originally Debt was the only remedy. In both cases the Obligation to Pay did not arise out of a Contract in the modern sense, as Debt for goods sold was based on the
43- ~n general, on the Development of Indebitatus Assumpsit as a remedy to recover damages for Use and Occupation, see:
TreatIses: 3 Street Foundations of Legal Liability, c. XV, Indebitatus Assumpsit, 182 (Northport, 1906); Ames, Lectures on Legal History, Lecture XV, Assumpsit for Use and Occupation, 167 (Cambridge, 19]3),
Comments: Quasi-Contraet-Assumpsit for Use si~d
Occupation Against a Trespasser in Modern Cases,
30 Mich.L.Rev. 1087 (1922); Quasi-Contracts-—Use
and Occupation—Recovery of Benefits Received by
a Trespasser, 35 Mich.L.Rev. 1190 (1930).
64. Gibson y. Kirk, 1 Q.B. 850, 113 Eng.Rep. 1357
ACTION OF INDEBITATUS ASSUMPSIT
theory of a grant,°3 whereas Debt for rent was a reservation. As to the sale of goods, the situation was altered by the development of Assumpsit, under which Assumpsit was extended into the Field of Debt, first, by holding that Assumpsit would lie where a Promise to Pay a Debt was made subsequent to the time when the Debt was created, and second, by the holding in 1602 in Blade’s Case,°6 in which it was decided “that the buyer’s words of agreement, which had before operated only as a grant, imported also a Promise, so that the seller might, without more, sue in Debt or Assumpsit, at his option.’’ 67
But the courts refused to take this step in the case of rent, and apparently there was only one case °~ of Indebitatus Assumpsit for rent prior to legislative intervention. In that case, Black v. Bowsat,°° decided in 1623, the reporter observed: “Note, there was not any exception taken, that the assumpsit is to pay a sum for rent; which is a real and special duty, as strong as upon a Specialty; and in such case this action lies not, without some Special Cause of Promise.” ~° And Dean Ames cites cases to support the view that thereafter the plaintiff failed to recover in Assumpsit, both where there was a subsequent Express Promise to Pay, as well as where there was no such Promise.11
Assumpsit was made concurrent with Debt in order to evade Trial by Wager of Law, but
65. Ames, Lectures on Legal History, Lecture XV, Assumpsit for Use and Occupation, 167 (Cambridge