No. 2849.

Book 4, tit. 8, chap. 4, sec. 2, 4, art. 1.

No. 2850.

When the contract is in the disjunctive, as on a promise to deliver a horse by a particular day, or pay a sum of money, the breach ought to be assigned that the defendant did not do the one nor the other. (a)

2849. The breach should not vary from the sense and substance of the contract, and be neither more limited, nor larger than the covenant; and care should be taken not unnecessarily to narrow it, for in this last case the plaintiff may be required to prove more than would have otherwise been required; for example, where a breach of covenant was assigned that the defendant had not used a farm in a husband-like manner, but on the contrary had committed waste, it was held, that the plaintiff could not give in evidence the defendant's using the farm in an unhusband-like manner, if such misconduct did not amount to waste, though if the latter part of the breach had been omitted, the evidence would have been admissible.

6° Of the damages.

2850. In personal and mixed actions, but not in penal actions, for obvious reasons, the declaration must allege, in conclusion, that the injury is to the damage of the plaintiff; and must specify the amount of damage.(b)

In personal actions there is a distinction between those which sound in damages and those that do not; but in either of these cases, it is equally the practice to lay damages. There is, however, this difference, that in the former case, damages are the main object of the suit, and are, therefore, always laid high enough to cover the whole demand; but in the latter, the liquidated debt, or the chattel demanded, being the main object, damages are claimed in respect to the detention only, of such debt or chattel; and are, therefore, laid in a small sum.

(a) Com. Dig. Pleader, C.

(6) Com. Dig. Pleader, C 84; 10 Rep. 116, b.

No. 2851.

Book 4, tit. 8, chap. 4, sec. 2, § 4, art. 1.

No. 2853.

The plaintiff cannot recover greater damages than he has laid or claimed in his declaration.(a)

2. Of common counts.

2851. The common counts are certain general counts, not founded on any special contract, which are introduced in a declaration, for the purpose of preventing a defeat of a just right by the accidental variance of the evidence. These, in an action of assumpsit, are founded on express or implied promises to pay money in consideration of a precedent debt, and are, therefore, called money counts; they are of six descriptions: 1, the indebitatus assumpsit; 2, the quantum meruit; 3, the quantum valebant; 4, the account stated; 5, the breach of the common counts; 6, general observations on the money counts.

1° The indebitatus assumpsit.

2852. The indebitatus assumpsit is that species of action of assumpsit, in which the plaintiff alleges in his declaration, first a debt, and then a promise in consideration of the debt, that the defendant, being indebted, he promised the plaintiff to pay him. The promise so laid is generally an implied one only. (b)

2853. There is a striking conformity between the action of indebitatus assumpsit and the pactum constituta pecunia of the civil law. This latter was an agreement by which a debtor agreed to pay his creditor what was due to him; whence there arose a new obligation, which did not destroy the former, by which he was already bound, but which was accessory to it; and by this multiplicity of obligations the right of the creditor was strengthened. (c) The pactum constitutæ

(a) Com. Dig. Pleader, C 84; Vin. Ab. Damages, R.; Tettee v. Prescott, 2 How. Mis. 686; Crabb v. Nashville Bank, 6 Yerg. 333; Maupin v. Tripplett, 5 Miss. 422; Hayton v. Hope, 3 Mis. 53.

(b) 1 Chit. Pl. 334; 3 Reeves, Hist. C. L.; Yelv. 21, 70; Bac. Ab. Assumpsit, G.

(c) Poth. Ob. 457.

No. 2854.

Book 4, tit. 8, chap. 4, sec. 2, § 4, art. 1.

No. 2855.

pecunia was a mere accessory obligation, and consisted in a promise to pay a subsisting debt, whether natural or civil, made in such a manner as not to extinguish the preceding obligation; it was introduced by the prætor to obviate some formal difficulties. The indebitatus assumpsit was invented to obviate a similar difficulty. To an action of debt, wager of law might have been opposed as a bar, but it could not to an action of indebitatus assumpsit.(a)

2o The quantum meruit.

2854. When a person employs another to do work for him, without any agreement as to his compensation, the law implies a promise, from the employer to the workman, that he will pay him for his services, as much as he deserves or merits. In such case the plaintiff may suggest in his declaration that the defendant promised to pay him as much as he reasonably deserved, and then he avers that his trouble was worth such a sum of money, which the defendant has omitted to pay. This is called an action on a quantum meruit.(b) When there is an express contract, for a stipulated amount and mode of compensation for services, the plaintiff cannot abandon the contract, and resort to an action for a quantum meruit on an implied assumpsit.

3° The quantum valebant.

2855. When goods are sold without specifying any price, the law implies a promise from the buyer to the seller that he will pay him for them as much as they are worth. The plaintiff in such case suggests in his declaration that he sold goods to the defendant, that he "promised to pay him as much as the goods were

(a) 4 Co. 91, 94. See 3 Wood. 168, 169, note c.; 1 Vin. Ab. 270; Bro. Ab. Action sur le case, pl. 7, 69, 72; 6 Toull. Dr. Civ. Fr. n. 388, 396; Inst. 4, 6, 9; Dig. 13, 5; Code, 4, 18; Nov. 115, c. 6.

(6) 2 Bl. Com. 162, 163; 2 Phil. Ev. 82; 1 Vin. Ab. 346.

No. 2856.

Book 4, tit. 8, chap. 4, sec. 2, § 4, art. 1.

No. 2857.

reasonably worth, and then avers that they were worth so much, that the defendant had notice thereof, and that he refused to pay for the same.' This count differs from the quantum meruit in this, that the quantum valebant is confined to goods; in most other respects they are similar.

4° The account stated.

2856. An action of assumpsit upon an account stated may be maintained, when there has been a settlement of their accounts, between the parties, and a balance struck in favor of one of them. A count on an account stated, is almost invariably inserted in a declaration in assumpsit for the recovery of a pecuniary demand. It is in general advisable to insert such a count, unless the action is against persons who are incapable in law to state an account. It is not necessary to set out the subject matter of the original debt.(a)

The usual form of a declaration on an account stated alleges, that "the defendant on, etc., aforesaid, at etc., aforesaid, accounted with the plaintiff of and concerning divers sums of money, before then due by the defendant to the plaintiff, and then in arrear and unpaid, and that upon such accounting, the defendant was found to be in arrear to the plaintiff, in a certain named sum, and that being so found in arrear and indebted, the defendant, in consideration thereof, undertook and faithfully promised the plaintiff to pay him the same on request."

5° Breach of the common counts.

2857. A breach of the money counts must be stated in order to show the plaintiff's right to sue. Upon these counts the common breach is in general terms

(a) Milward v. Ingraham, 2 Mod. 44.

No. 2858.

Book 4, tit. 8, chap. 4, sec. 2, § 4, art. 1.

No. 2859.

according to this formula: "yet the said defendant not regarding his said promises and undertakings, but contriving, and craftily and subtlely intending to deceive and defraud the said plaintiff in that respect, hath not (although often requested so to do,) as yet paid the said sums of money, or any part thereof, but has wholly neglected and refused, and still neglects and refuses so to do, to the damage of the plaintiff in the sum of dollars, and therefore he brings his suit, etc." This breach necessarily varies in actions by and against partners, husband and wife, executors, etc.

These allegations of deceits, craftiness, subtlety and fraud, though usual, do not seem to be essential in such a breach.

2858.-1. Money lent may be recovered under the common count for money lent, charging that the defendant promised to pay the plaintiff for money lent. To recover, the plaintiff must prove that the defendant received the money, but it is not indispensable that it should have been originally lent; if, for example, the money had been advanced upon a special contract which had been abandoned and rescinded, and which cannot be enforced, the law raises an implied promise, from the person who holds the money, to pay it back as money lent.

2859.-2. When one advances money for the use of another, with his consent or at his express request, although he be not benefited by the transaction, (a) the creditor may recover in an action of assumpsit, declaring for money paid for the defendant. But one cannot by a voluntary payment of another's debt, without his consent express or implied, make himself

(a) Hassinger v. Solms, 5 S. & R. 9; Addis on Contr. 226.