317], and cases there cited; Whiting v. Sullivan, 7 Mass. 109; Robertson v. Lynch, 18 Johns. 456.

This case shows, if work is in fact done under a special contract, the plaintiff cannot recover under a quantum meruit. In this case, the work was done under a special contract made with a party assuming to act for the plaintiff in error, and the recovery must be had on that contract.

See also Miller v. Watson, 4 Wend. 275; Wright v. Butler, 6 Id. 284 [21 Am. Dec. 323]; Vandenheuvel v. Storrs, 3 Conn. 203, and cases there cited; Shepard v. Palmer, 6 Id. 100; Hulle v. Heightman, 2 East, 145; Pringle v. Samuels, 1 Bibb, 172 [13 Am. Dec. 214]; Christy v. Price, 7 Mo. 433.

When the contract has been performed, the plaintiff may recover on simple contract the price of the service, under an indebitatus assumpsit, but the contract must regulate the amount of the recovery: Bank of Columbia v. Patterson, 7 Cranch, 299; Holmes v. Stummel, 24 Ill. 370.

This distinction, as to the form of the remedy upon executed or executory contracts, is fully laid down and recognized, and is perfectly consistent with the principle excluding implications when express contracts exist: James v. Cotton, 7 Bing. 266; S. C., 20 Eng. Com. L. 125; Kimball v. Tucker, 10 Mass. 195; Londregon v. Crowley, 12 Conn. 561; Charles v. Dana, 14 Me. 383; Mead v. Degolyer, 16 Wend. 637; and numerous other authorities might be cited to the same effect. It follows, then, that suit must be brought against the parties to this contract. They have made it in the form that suited them best, and that must be the ground of action and measure of relief: Parker v. Emery, 28 Me. 494.

The reason of the rule is plain. Parties are bound by their agreement, and therefore there is no ground for implying a promise when there is an express contract, and it can make no difference whether the contract is made by the parties themselves or by others for them. The contract must be sued on. The defendants seem to have misconceived the doctrine.

Although the contract may be a subsisting unexecuted contract, and on that account requires a suit on the instrument itself, yet the right to bring indebitatus assumpsit for money due on an executed contract does not entitle the party to set aside the contract and sue on a quantum meruit. It is a question as to the form of the action. But whether it be a general count on an indebitatus assumpsit or a special count on the contract itself, the parties to the contract must be the parties to the suit, and be controlled by its provisions.

Again, the defendants seem to misapprehend the rule in another respect, for when work is done under a contract, the suit must be between the parties to it; and third persons, though benefited by the work, cannot be sued on an implied assumpsit to pay for that benefit, upon the idea that they cannot avail of the fact of the work being so done under a contract with others.

It is true, as a general proposition, that if the owner of real estate will stand by silently and allow another to go to work, and bestow his labor and materials for its benefit and improvement, that he ought to be liable upon an implied assumpsit to pay therefor a reasonable compensation. Yet this does not apply, when that labor and those materials were bestowed under an express agreement. This being so, the counsel for the defendants, and the court below, have fallen into an error as to the application of the principle. The plaintiff in error had a right to set up and show there was a special contract with other parties, under which the work was done, and therefore that there could be no implied undertaking on his part, in law, to pay, notwithstanding the work was beneficial to him, and he stood by without objecting to its being done on his premises. Recognizing, as we do, the validity of the special contract in any form of action to recover for this work, it follows, as a corollary, that in any form of action which may be deemed proper to recover upon it, the parties to it must become the parties on the record, and the amount of the recovery must be regulated by the provisions in the contract. Any other rule would make contracts of little value, and the courts might become instruments of oppression in attempting to enforce them. Sound and long-established rules must be adhered to. A general notion of administering equity in particular cases should not induce courts to overturn settled principles. They might do more wrong than they would redress in the particular case.

For the reasons given, the judgment of the court below is reversed.

Judgment reversed.

LAW WILL NOT IMPLY CONTRACT where there is an express contract between the parties: King v. Woodruff, 60 Am. Dec. 625; nor will courts substitute another contract in place of one made by the parties: Richardson v. Maine Ins. Co., 74 Id. 459.

RECOVERY ON QUANTUM MERUIT for work done under a contract: See Gilman v. Hall, 34 Am. Dec. 700; Hunt v. Test, 42 Id. 659; Eldridge v. Rowe, 43

Id. 41; Blood v. Enos, 36 Id. 363; Gleason v. Smith, 57 Id. 62; Greene v. Linton, 31 Id. 707; Coe v. Smith, 58 Id. 618; Pixler v. Nichols, 74 Id. 298; Angle v. Hanna, Id. 161; Wolfe v. Howes, 75 Id. 388.

WHEN PLAINTIFF CANNOT RECOVER ON QUANTUM MERUIT: Winstead v. Reid, 57 Am. Dec. 571.

FORM OF COUNT FOR QUANTUM MERUIT: Allen v. Patterson, 57 Am. Dec. 545, note; Wolfe v. Howes, 75 Id. 388.

THE PRINCIPAL CASE IS CITED to the point that an implied contract cannot arise where there is a subsisting express contract covering the entire subjectmatter, in Ford v. McVay, 55 Ill. 122; Foley v. Bushway, 71 Id. 391; Phelps v. Hubbard, 59 Id. 81. It is cited to the point that where a contract has been performed, and nothing remains to be done under it but to pay the money due by its terms, the party to whom it is owing may sue in assumpsit, and recover under the appropriate common counts, and is not required to declare especially on the written instrument, in Thomas v. Caldwell, 50 Id. 141; and is cited to the point that where work is done under a special contract, the suit must be between the parties to the contract, and that third persons, though benefited by the work done, cannot be sued upon an implied assumpsit, in Compton v. Payne, 69 Id. 355.

LOY V. STEAMBOAT F. X. AUBURY.

[28 ILLINOIS, 412.]

ACTION OF TRESPASS WILL LIE AGAINST STEAMBOAT, UNDER ILLINOIS STATUTE, for an assault and battery committed by the mate or other officer of the boat, on the person of a passenger on board, while such boat is navigating the rivers within or bordering upon the state.

THE facts are stated in the opinion.

E. F. Bull, for plaintiff in error.

B. C. Cook, for defendant in error.

By Court, BREESE, J. This was an action of trespass, brought by plaintiff in error in the La Salle circuit court, against the steamboat F. X. Aubury, for an assault and battery, committed by the mate of the boat upon the plaintiff, while he was a passenger upon the boat, whereby the plaintiff's thigh was broken. It is averred in the declaration that the F. X. Aubury was a steamboat navigating the navigable rivers in and bordering upon this state. The general issue was pleaded; a trial by jury, and damages assessed for plaintiff at two thousand dollars.

The court refused to render judgment on the verdict, but arrested the same, and this is assigned for error.

The grounds upon which the court arrested the judgment do not appear in the record.

The action was brought under the act of February 16, 1857, the title of which is, "An act to amend chapter 102, Revised Statutes, entitled 'Steamboats."" The first section is as follows:

"That steamboats and other water craft navigating the rivers within and bordering upon this state, shall be liable for debts contracted on account thereof by the master, owner, steward, consignee, or agent, for materials, supplies, or labor in building, repairing, furnishing, or equipping the same, or due for wharfage, and also for damage arising out of any contract for the transportation of goods or persons, or for injuries done to persons or property by such craft, or for any damage or injury done by the captain or mate or other officer thereof, or by any person under the order or sanction of either of them to any person who may be a passenger or hand on such steamboat or other water craft at the time of the infliction of such damage or injury: Provided that nothing herein contained shall be construed to make the craft or owners thereof liable for the trespass done by any of the crew not under the direction of the officers in command thereof": Scates's Comp. 789.

The record presents the question, Can an action of trespass be maintained against a steamboat for an assault and battery committed by the mate of the boat on the person of a passenger on board, whilst such boat is navigating the rivers within or bordering upon this state?

It is a case of the first impression, and its decision must depend upon the construction proper to be placed upon the statute cited.

In arriving at this, we must consider what were the mischiefs sought to be remedied by this enactment. It was well known that steamboats plying upon the rivers in this state or on its borders, a great majority of them at least, were the property of persons not residing in this state, and whose actual and permanent residence, if they had any, not easy to be ascertained, and their names not unfrequently unknown, and difficult, if not impracticable, to make them amenable to the process of our courts. It often happens, too, that the owner was not pecuniarily responsible; and it was notorious, and is yet, that they employed in responsible positions on their boats unreliable persons, men of low, rough, and brutal character, who, when clothed with "a little brief authority," would be domineering, tyrannical, and cruel towards those temporarily in their power, and withal wholly irresponsible in every re

spect, and against whom, should an action be brought for an injury, no matter how flagrant, no redress whatever could be had. These were among the mischiefs which the legislature designed to remedy, and the mode by which it was to be accomplished was, by substituting the boat itself in the place of the owners or officers controlling it, and making it liable directly, not only for its contracts, but for its torts, and sell her out to satisfy the judgment.

Admitting this, the question is made, What shall be the kind of action for an injury done to a passenger by the captain, mate, or other officer? The statute provides no form, and the defendant insists, as it is in derogation of common law, and no personal service required, it should be strictly construed. That the common law would only allow an action on the case, as the injury to the plaintiff is, so far as the boat and its owners are concerned, consequential only, resulting wholly from their wrongful act in employing a man unfitted for his station.

The answer to the question here made is obvious, if the view we have taken of the purposes of the act be correct. The boat is treated as a person, and whatever action would lie against a person, for an injury, will lie against the boat, the kind of action to be determined by the nature of the injury, and the damages recoverable will be such as are legally recov erable in the action brought, to be determined by the evidence. If punitive damages may be recovered in an action of trespass against a person, we see no reason why they may not be against a boat treated as a person, as an admonition to its owners to put none in authority upon it but responsible persons,— men who will exercise proper care, and have due respect for the rights of those committed to their charge.

The facts appearing in the record show an outrageous case of assault and battery by the mate, and we know of no action but trespass that will fit such a case. The legislature evidently intended to give such action as would fit each case of injury as it should arise. If the injury was by force,-direct, wanton, willful, and malicious,-trespass would be the remedy. If the injury was not the direct and necessary consequence of the force, or was the result of carelessness or negligence, then case would be the remedy.

We know of no other state having a statute like this but the state of Ohio. The section we have quoted is almost an exact copy of the first section of the law of Ohio, the word