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1913).
66. 4 Co. 92b, 76 Eng.Rep. 1074 (1602).
57. Ames, Lectures on Legal flistory, Lecture XV, Assurnpsit for Use and Occupation, 107 (Cambridge

1913).
~- Slack v. Bowsal, Cro.Jac. 608, 79 Eng.flep. 575

(1623).


66. Ibid.

iO. Slack v. Eowsnl, Cro.~ac. 668, 79 Eng.Rep. 57s, 570 (1023),

this incentive was lacking in the case of rent, as Wager of Law was not available in Debt for Rent. And the Executor of a Lessee was chargeable in Debt, while only Assumpsit was permitted against the Executor of a Buyer or Borrower. Hence, as Dean Ames suggests, the Courts found no reason why they should extend Indebitatus Assumpsit in­to the Field of Rent. In time, however, the landlord was permitted in certain cases to sue in Special Assumpsit as well as Debt, an innovation brought about by the continu­ing struggle between the Royal Courts for Jurisdiction. As Special Assumpsit was a

branch of Trespass on the Case, over which King’s Bench had jurisdiction, this part of its jurisdiction was expanded to cover the situa­tion, as it had no jurisdiction over cases aris­ing by Original Writ in Debt. In its earliest attempt, as in the case of Synwock v. Payn,72 the Court sought to justify its usurpation by construing agreements concerning leases as not creating a rent. In 1635, in the case of Acton v. Bimonds,’73 it was held that As­sumpsit would lie concurrently with Debt where it appeared that at the time of the lease, the lessee had expressly Promised to Pay the rent. The argument was sum­mari2ed in a report of the same case in Rolle’s Abridgment,5’ where it was said:

“The action lay, because it appeared that it was intended by the parties that a lease should be made and a rent reserved, and for better security of payment thereof that the lessor should have his remedy by Action of Debt upon the reservation, or Action upon this Collateral Promise at his Election, and this being the intent at the beginning, the making of the lease though real would not toll this Collateral Promise, as a man may covenant to accept a lease at a certain rent and to pay the rent according to the reserva~ tion, for they are two things, and so the
75. Cro.Eliz. 786, 78 Eng.Bep. 1010 (1600).
73. Jones, W. 364, 82 Eng-Rep. 190 (1635).
74. 1 Rolle, Abridgment, 8, p1. 10, (1834).

~L Ames, Lectures on Legal History, c. XV, Assump­sit for Use and Occupation, 167 (Cambridge 1913).

356


OFFENSIVE PLEADINGS

Ch. 17

Promise of Payment is a thing Collateral to the Reservation, which will continue though the lessee assign over.” According to Dean Ames, this doctrine, as recognized by the Court of King’s Bench, was adopted by the Court of Exchequer in the case of Trever v. Roberts,75 decided in 1664, and by the Court of Common Bench in the case of Johnson v. May,5° decided in 1683. In the cases consid­ered to this point the assumpsit was for the payment of a sum certain, but anumpsit was also admissible in cases where the amount to be recovered was uncertain, that is, where the defendant promised to pay a reasonable compensation for use and occupation of land. And, as Debt originally would not lie upon a Quantum Meruit Count,71 Assumpsit thus filled a gap in the remedial law, as it lay where the sum to be recovered was indefinite or uncertain,~ with the consequence that Debt would not lie.


Against this background, in the year 1737, the Statute of 11 Ceo. If, c. 19, was enacted. To remedy the inconvenience of suing for the recovery of rents, where the demises were not by deed, Section 14 provided that it shall be lawful for a landlord, “where the agreement is not by deed, to recover a reasonable satis­faction for the lands, tenements, and heredit­aments held or occupied by the defendant in an Action on the Case for the Use and Occu­pation of what was so held or enjoyed; and if, in evidence on the Trial of such action, any parol or demise or agreement, not being by deed, whereon a certain rent was reserved, shall appear, the plaintiff shall not there­fore be Non-suited, but may make use there­of as an evidence of the Quantum of Dam­ages to be recovered.” From the language of the Statute, it is evident that it was
~6. I-Iardr. 366, 145 EngRep. 500 (1664).
76. 3 Let. 150, 83 Eng.Rep. 624 (1683).
IT. Mason V. Welland, Skin. 288, 90 Eug.ltep. 109 (1685).
~8. King t Stephens, 2 RelIc 435, ~1 EngRep. 900 (1823).

designed to eliminate two earlier difficulties which barred the use of Indebitatus Assump­sit for Use and Occupation; first, to prevent a plaintiff from being Non-Suited on the ground of a Variance, where the plaintiff had sued upon a Quantum Meruit Count, and it appeared from the evidence that the demise was for a sum certain, for which Debt was the proper remedy; and second, to escape from the necessity of proving an Express Promise at the time of the demise, where the plaintiff declared for a sum certain, and it was the removal of this second diffi­culty which gave the Statute its chief sig­nificance. Dean Ames summed up the mat­ter, when he declared: “Thereby Indebitatus Ass’umpsit became concurrent with Debt up­on all Parol Demises. In other words, the Statute gave to the landlord, in 1738, what Blade’s Case gave to the seller of goods, the lender of money, or the employee, in 1602; namely, the right to sue in Assumpsit as well as in Debt, without proof of an Independent Express Promise.” ‘~°


Although the Statute only mentioned an Action on the Case, which meant Assump­sit, Debt for Use and Occupation still re­mained available,60 even where there was an Express Demise, but not by deed.8’ Thus, the action of Indebitatus Assumpsit for Use and Occupation became a remedy in all those cases in which the demise or agreement was not by deed, and where the defendant had had an actual or constructive occupation; but where the demise or agreement was by deed, the action would not lie, in which case the remedy was in Debt or Covenant on the demise or agreement.65
79. Ames, Lectures on Legal History, c. XV’, Assump­sit for Use and Occupation, 170 (Cambridge 1913).
SO. Wilkins v. Wingate, 6 T.R. 62, 101 Engitep, 436

(1794).

81, Gibson v. Kirk, 1 Gate 4 P. 252 (1841).

82. 1 flolle, Abridgment 7, ActIon sur case (London

1668).


Sec. 176

ACTION OF INDEBITATUS ASSUMPSLT

357


As the Action for Use and Occupation was based on the landlord-tenant relationship, ex­press or implied, and as the Statute was con­strued as limited to cases, where by mutual agreement, the person in possession of the land was to pay either a sum certain or a rea­sonable compensation to the owner, it was not possible to charge a trespasser in As­sumpsit for Use and Occupation.
As to pleading, it was not necessary to al­lege where the premises were located, as the Venue was Transitory.83 And where a rent had been agreed upon, that was the Measure of Damages, even though the lease was void,61 otherwise they would be the value of the premises, which should be proved.~ It was not permissible to join a Count on a Demise and a Count for Use and Occupation.80
(2) The Count for Board and Lodging.— In this Count the plaintiff alleged that the de­fendant was indebted for certain rooms, apartments and furniture, used and enjoyed

at the special request of the said defendant; and for meat, drink, fire and candles, and other necessaries, found and provided by the plaintiff at the defendant’s special request; that the said defendant undertook and faith­fully promised the plaintiff to pay him so much money as he reasonably deserved to have of the said defendant; plus an averment as to the amount of money the plaintiff rea­sonably deserved,


(3) The Count for Land Sold and Con­veyed.—The Indebitatus Counts include a Count for Real Property Sold. It has been held in many cases, that where the agreement to pay the price of Land was to pay the same in money, such price could be recovered un­
83. King v. Fraser, 6 East 348, 102 Eng.Itep. 1320 (1805).
~ Be Medina v. Poison, felt. 47, 171 Eng.Rep, 157 (1815).
$8. Tomlinson v. Day, 2 Brod. & B. 680, 120 Eng.ltep.

1125 (1821).

der a General Indebitatus Count for Land Sold and Conveyed.67


(4) The Count for Goods Sold and Dc­livered.—The Indebitatus Count for Goods Sold and Delivered lies only where there has been a delivery of the goods to the de­fendant, or something equivalent to a de­livery, as for instance, putting it within the defendant’s power to take them himself.88 And whenever goods are sold and delivered under a Special Contract fixing the price to be paid, the action to recover the price is eith­er Special Assumpsit on the Contract or the price of the goods, which the Law Implies to be their Value, may be recovered in General Assumpsit. But where the debt is not due from the defendant immediately, a Count for Goods Sold and Delivered will not lie and the action must be Special Assumpsit. But where there has been a delivery, the action may be either in Indebitatus Assumpsit, on the Count for Goods Sold and Delivered, or on a Quan­tum Valebant Count.89

We have previously seen that where goods are wrongfully obtained and converted into


87. Illinois: Elder v. flood, 38 III. 533 (1865); Mnssa~ eliusetts: Goodwin v. Gilbert, 9 Mass. 510 (1813); Felch v. Taylor, 13 Pick. (Mass.) 133 (1832): Pike v. Brown, 7 Gush. (Mass.) 133 (1851); Michigan:

Nugent V. Teachout, 67 1\fich. 571, 35 N.W. 254 (1887); New York: Nelsnn v. Swan, 13 Johns. (N.Y.) 483 (1816); Bowen v. Bell, 20 Johns. (N.Y.) 338, 11 Am.Dec. 286 (1823); Whitbeck v. Whitbeek, 9 Cow. (N.Y.) 266, 18 Am.Dec. 503 (1828); Pennsylvania:

Siltzell V. Michael, 3 Watts & S. (Pa.) 329 (1842).
88. Smith v, Chance, 2 B, & A. 753, 106 Eng.Ilep. 540 (1810).
89. Illinois: Toledo, IV. & W. U. Co. v. Chew, 67 111.

378 (1873); Massachusetts: Goodrich v, Laffliu, t

Pick. (Mass.) 57 (1822); Loring v. Gurney, 5 Pick,

(Mass.) 15 (1827); Shearer v. Jewctt, 14 Pick.

(Mass.) 232 (1833); Bemis v. Charles, 1 Mete. (Mass.)

4-40 (1840); Wadsworth y. Gay, 118 Mass. 44 (1878);

Knight V. New England Worsted Co., 2 Cush. (Mas&>



271 (1848); Michigan: Clark v. Moore, 3 Mich. 55

(1853); WIlson v. Wagar, 26 Mich. 452 (1873);

Larkin V. Mitchell & Rowland Lumber Co., 42

mcli. 290, 3 NW. 904 (1879); New York: Wilison

v. Force, C Johns. (N.Y.) 110, 5 Am.Dee. 195 (1810);

Pennsylvania: Adams v. Co]urnbian Steamboat Co~,

3 Whart. (Pa.) 75 (1838).

~‘ Arden v. PuIlen, 9 M. & W. 430, 152 Eng.Rep. 492

(1842).

OFFENSIVE PLEADINGS



money, Indebitatus Assumpsit will lie by the owner to recover the money, as received for his use, but such Form of Assumpsit will not lie where the goods are not converted into money by the wrongdoer.9° Whether Assumpsit in any form will lie in the latter case is not clear. Some courts hold that the only remedy is in Tort, as by an Action of Trover.°1 Other courts, however, hold that the owner of the goods may waive the Tort, mId sue in Indebitatus Assumpsit for the goods, as upon a Fictitious Sale, and Promise to Pay for them?2
90. Thus, a sale of an automobile to which (ho man­ufacturer had title, was held to be a conversion by the party who sold it, for which the manu(aeturer could maintaia Prover or he could Waive the Tort Action and recover on the Common Counts, after disposition of the car for money or other property,

Alabama: Pinner v. Studebaker Corp. of America, 196 Mi. 422, 72 So. 54 (1916); Georgia: Parker v. Lee, 19 Ga.App. 499, 91 SE. 912 (1917).


Dl. Alabama: Strother’s Athn’r v, Butler, 17 Ala, 733, 52 Am.Dee. 190 (1850); Maine: Androscoggin Wa­ter Power Co. v. Metcalf, 65 Mc. 40 (1870); 3lassa-chusetts: ,loues v. Boar, 5 Pick. (Mass.) 285 (1827) Allen v. Ford, 19 Pick. (Mass.) 217 (1887); Michi­gan: Galloway v. Holmes, 1 Doug. (Mich.) 330 (1844); ef. Aidhie hUg. Go, v. Barnard, 84 Mieb. 632, 48 N.W, 280 (1891); Missouri: Kansas City, St J. & C. B. B. Go., 79 Mo. 278 (1883); Pen]Isylvania:

Bethlehem Borough v. Perseverance Fire Go., 81 Pa. 445 (1876). See, also, Clark, Handbook on the Law of Contracts, ~. VI, 632 (3d ed., St. Paul 1914).


And in such jurisdictions, where the goods taken have been turned into money, there can be no recovery on a Count for Goods Sold and Delivered; the Count must be for Money Had and Received. Allen v. Ford, 10 Pick. (Mass.) 218 (1837); Brown v. Hol­brook, 4 Gray (Mass.) 103 (1855).
Where one wrongfully converts personal property, but does not receive any money thcrefor, the Tort can­not be Waived, and an Action Sw Contrctctu brought, because, until the wrongdoer has received money to which the owner of the property is entitled, there can he no Action for Money Had and Received, or upon an Implied Promise to Pay. Woodruff v. Za­ban & Son, 133 Ga. 24, 65 SE. 123, 134 Am.St.Ilep. 186, 17 Ann.Cas. 974 (1909).
0?. English: Russell v. Bell, 10 hI. & W. 340, 152 tag. Rep. 500 (1842); IllInois: Toledo, W. & W. B. Co. v. Chew, 67 III. 378 (1873); Michigan: Alamo Mfg. Ce,

-t Barnard, 94 Mich. C32, 48 N.W. 280 (1891); Mis­sissippi; Evans v. Miller, 58 Miss. 120, 38 Am.Ecp.

(5) The Count for Goods Bargained and Sold.—The Common Count for Goods Sold and Delivered lies in those cases only in which there has been an actual or construc­tive delivery; but the Count for goods Bar­gained and Sold lies where there has been a complete sale but no delivery. It is neces­sary, however, that the property in the goods should have become vested in the vendee by virtue of such sale.93 The right of property must be in the vendee, though the right of possession may be in the vendor; and al­though a sale be complete and binding in other respects, no property passes where any­thing material requires to be done before the delivery, to ascertain the price thereof, or the specific goods sold, and Goods Bar­gained and Sold therefore will not in such
313 (1880); New York: Willson v. Force, 6 Johns.

(N.Y.) 110, 5 Am.Dec. 195 (1810); Goodwin v. Crlf­fis, 88 N.Y. 629 (1882); Terry v. Mungcr, 121 N.Y.

161, 24 N.E. 272, 8 L.R.A. 216, 18 Am.StSep. 803

(1890); Pennsylvania: McCullough v. McCullough,

14 Pa. 295 (1550); - Fianey v. MeMahon, I Yentes

(Pa.) 248 (1793); Wisconsin: Walker v. Duncan, 68

Wis. 624, 32 NW. 889 (1887); Clark, Handbook on

the Law of Contracts, c. VI, 646 (3d ed., St. Paul,

1914).
But compare: English: Thurston v. Mills, 16 East 254, 104 Eng.llep. 1085 (1812); Illinois: Creel v. Kirk­ham, 47 Ill. 344 (1868); Johnston v. Salisbury, 61 Ill. 316 (1871); Michigan: Tuttle v, Campbell, 74 Ifich. 652, 42 N.W. 384, 16 Am.St.Rep. 652 (1880); Pennsylvania: Boyer v. Eullard, 162 Pa. 555 (1883); \Vciler v. Korsbner, 109 Pa. 210 (1885).
‘Where there has been a tortious taking or detention of property, which has not been sold by the tort­feasor, the owner may Waive the Tort and recover the fair value thereof in an action of Assumpsit up­on an Account for Goods Sold and Delivered. Con. away v. Popper, 7 Boyce (Del.) 511, 108 A. 676 (1919).
Where the defendant appropriated the plaintiff’s prop­erty, the plaintiff may Waive the Tort and mai,,tain an Action of Assmnpsit for the value of the proper­ty, even though the defendant had not sold and con­verted the samo into money. Daniels v, Foster & Kleiser, 95 Or. 502, 187 P. 627 (1920). See, also, an article by Deinard & Deinard, Election of Remedies, 8 Minn.L.Ilcv. 341, 358, 360, 502, 504 (1222L
03. Atkinson v. Boll, S B. & C. 277, 108 Eng.lIep. 1040 (1828).

358


CIt 17

Sec. 176


ACTION OF JNDEBITATUS ASSUMPSIT

359


case lie. And so in the case of manufactured goods, unless the goods are specifically ap­propriated to the vendee, with his assent, no property passes, and Goods Bargained and Sold will not lie.04
(6) The Count for Work, Labor and Serv­ices.—When work is done or services are ren­dered, not under a Special Contract as to compensation, but under such circumstances that the law will Imply a Promise to pay what they are worth, or where, though done or rendered under a Special Contract, that Contract has been Fully Performed, General Assumpsit will lie to recover compensation therefor. In such cases, the action may be in Indebitatus Assumpsit,95 or on the Quantum MeruitY~

(II) Value Counts: (A) Quantum Meruit.

—The first of the Vaiue Counts, Quantum lkteruit, is used where the plaintiff has per­formed services, and he alleges that, in Con­sideration that the plaintiff, at the request of the defendant had done certain work, he, the defendant, Promised the plaintiff to Pay him so much money as he there for reason­ably deserved to have, and that the plaintiff deserved to have a certain sumY7
DL Browne, A Practical Treatise on Actions at Law, c. VI Forms of Actions, § 3 Goods Bargained and Sold (London 1843).
95. Massachusetts: Fuller v. Brown, 11 Mete. (Mass.)

440 (1846); Pennsylvania: Kelly v. Foster, 2 Bin.

(Pa.) 4 (1800); Miles v. Moodie, 3 Serg. & U. (Pa.)

211 (1817); Harris v. Christian, 10 Pa. 233 (1849).


Indebitatus Assumpsit will not lie for work and labor where the plaintiff has been discharged without performance. The action must ho on the special agreement. Algco v. Algeo, 10 Serg, & U. (Pa.) 235 (1823).

96. Illinois: Frazer v. Gregg, 20 III. 299 (1858);

Massachusetts: King v. Welcome, 5 Gray (Mass.)

41 (1855); Atkins v. Earnstable County, 97 Mass.

428 (1867); Michigan: Allen v. MeKibbin, 5 Mich.

440 (1858); Mooney v. York Iron Co., 82 Mich. 263,

46 N.W. 376 (1890); Pennsylvania: Summers v. Me-

Kim, 12 Serg. & B. (Pa.) 405 (1825).

(B) Quantum Valebant..—The second of the Value Counts, Quantum Valebant, is used where the plaintiff has sold goods to the defendant, and he alleges that the defend­ant, in Consideration thereof, Promised the plaintiff to Pay him so much as the goods were reasonably worth, and that they were reasonably worth a certain sumY~
(C) The Absorption of the Quantum Mentit and Quantum Valebant Counts into the Indebitatus Counts.—As Debt originally lay for a sum certain only, that action could not be maintained on the facts of a Quantum Meruit or a Quantum Vatebant, because of the uncertainty of the sum involved. But when Debt was extended to suchjmplied Ob­ligations, under the maxim Id certum efl quocl certum reddi potest [that is certain which can be made certain], and the Indebitatus Count in Assumpsit came to be perniitted in cases where by evidence an uncertain sum could be reduced to a certainty, it thus was made possible to maintain the action on such factual situations as formerly required the use of the Quantum Meruit or Quantum Vale­bant Counts. The Value Counts of Quantum Meruit and Quantum Valebant, in the eyes of the legal profession in England, came to be regarded as unnecessary, their original scope and purpose being brought within the purview of the Indebitatus Count in Assurnpsit and in Debt. In recognition of this fact the Regula­tions of Trinity Term, in 1831, prescribed a Common Form for the Common Counts of Indebitatus Assumpsit and Account Stated, simplifying and relieving them from “un­necessary verbiage.”
In the United States it has been held that

the use of the Value Counts is now not neces­sary, since the reasonable Value of Goods Sold and Delivered or Work and Labor Done may


98. Id. at 140.
99. Martin, Civil Procedure at Common Law, c. It, Personal Actions Ex Gontractu, Art. III, Assumpsit, 57, Common Counts, 57 (St. Paul, 1005).

See I Saunders, Pleading and Evidence, Assump­sit, Form of Remedy, 139, 140 (Philadelphia 1831).

360

OFFENSIVE PLEADINGS

Ch. 17

be recovered upon an Indebitatus Count.t Thus, in Parker v. Macamber,2 where the plaintiff brought Indebitatus Assumpsit to recover compensation for board, mainte­nance, care and nursing, with the Declaration containing Four Counts, for Goods Sold and Delivered, Work and Labor, Money Had and Received, and for Interest, and the Jury re­turned a Verdict for the plaintiff, after which the defendant sought a New Trial, contend­ing, among other things, that the evidence as to the services rendered was not admissible without a Quantum Meruit Count, the Court denied a New Trial, declaring: “We think it [the declaration] is sufficient. A Count in Quantum Mcmii, as well as one in Intl ebitat us Assumpsit for Work, Labor, Skill, Care, Dili­gence, etc., claims a certain sum due. In either case the plaintiff may recover less, and the Judgment is for so much of his stated claim as is found to be justly merited. The Counts in Quantum Meruit and Quantum Valebat, are therefore unnecessary in any case.” ~


The effect of such decisions has been to reduce the necessary Common Counts to the indebitatus Counts and the Account Stated, the latter of which will now be considered.
(111) The Common Count on an Account &ated.4—The Action of Indebitatus Assump­sit lies to recover the balance due upon an Account Stated, for the law Implies a Prom­ise to pay it. The Account Stated must be with reference to former transactions be­tween the parties, or some debt for which an action or suit would lie, or some demand which the defendant ought morally and in
S. Norris v. School District No. I in Windsor, 12 Me. 293, 28 Am.Dec. 182 (1825).
2. 17 RI. 674, 24 A. 464, 16 L.I?A. 858 (1892).
-3. Parker v. Macomber 17 RI. 674, 24 A. 464, 16 L. R.A. 858, 861 (1892).

justice to pay;6 if not, the Count is not main­tainable. The rule as to when the Count on an Account Stated will lie, was laid down in the case of Porter v. Coaper, by Baron Parke, who declared: “I take the rule to be this, that if there is an admission of a sum of money being due for which an action would lie that will he evidence to go to the Jury on the Count for an Account Stated.”7 Thus, an Account Stated is an acknowledg­ment of debt.8


CONTRACTS OF RECORD AND STATUTORY

LIARILIT1ES~
177. Indebitatus Assuznpsit will not lie, in the absence of a statute, to enforce a Domestic Judgment nor a Judgment rendered in a Sister State. But a Judgment of a Foreign Court is not considered a Debt of Record.

Indehitatus Assumpsit will lie to enforce cer­tain Statutory Obligations to pay money.
Action on Judgment

A JUDGMENT of a Court directing the payment of money clearly cannot be regarded as a true Contract, for the element of agree­ment is wanting.’° Whether or not Assump­


5. C)ai-ke v. Webb, I G.M. &R. 80, 149 E]lgltep. 980 (1834).
6. 1 C.M. & It. 387, 149 Eng.Itep. 1180 (1834).
7. Porter v. Cooper, I ~.M. & B. 387, 304, 149 Lag. Rep. 1130, 1133 (1834).
S. English: hopkins v. Logan, 5 1sf. & \V. 241, 151 Lng.Rep, 103 (1830); Irving v, Vouch, 3 M. & W. bc), 150 Eng.Ilep. 1069 (1837); Illinois: Throop V. Sherwood, 4 Gil. (Dl.) 92, 98 (1847); MackIn v. O’Brien, 33 Ill.App. 474 (1892); IBdiana: Marshall v. Lewark, 117 But. 377, 20 N.E. 253 (1559); Massa­chusetts: hoyt v. Wilkinson, 10 Pick. (Mass.) 31

(1830); Michigan: Stevens v. Tuller, 4 Mich. 387

(1857); Watkins v- Ford, 60 Mich. 357, 37 N.W. 300

(1888); Vermont: Warren v. Garyl, 61 vt. 331, 17

A. 741 (1850); W. F. Parker & Son v. demons, 80

Vt. 521, 65 A. 646 (1908).


9. In general, on contracts of Record, see Note, ii Ann.Cas. 656 (1909).
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