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3. Where any agreement is made, upon consideration of marriage.
4. Where any contract or sale is made of lands, tenements or hereditaments, or any interest therein.
5. Where there is any agreement that is not to be performed within a year from the making thereof.
In all these cases a mere verbal assumpsit is void. IMPLIED CONTRACTS.
Defined. These are such, as reason and justice dictate, and which therefore the law presumes that every man has contracted to perform, and upon this presumption, makes him answerable to such persons as suffer by his non-performance.
First. Implied by the fundamental constitution of government.
Obligation as a Citizen. Every man is this case is a contracting party. Thus every one is bound, and has virtually agreed to pay, such particular sums of money as are charged on him by the sentence, or assessed by the interpretation of the law. It is a part of the original contract, entered into by all mankind, who partake of the benefits of society, to submit in all points to the municipal constitutions and local ordinances of that state, of which each individual is a member. Whatever, therefore, the laws order any one to pay, becomes instantly a debt, which he has beforehand contracted to discharge.
Former Recovery. It is an implied agreement, that gives the plaintiff a right to institute a second action, founded merely on the general contract, in order to recover such damages or sum of money, as are assessed by the jury and adjudged by the court to be due by defendant to plaintiff in any former action. So if he has once obtained judgment for a certain sum, and neglects to take out execution thereupon, he may afterwards bring an action of debt upon the judgment, and shall not be put upon the proof of the original cause of action, but upon showing the judgment once obtained, still in full force and unsatisfied, the law immediately implies, that by the original contract of society, the defendant has contracted a debt, and is bound to pay it. Since the disuse of real actions, actions of debt upon judgments in personal suits are seldom brought, as the costs are thereby doubled, owing to there being two suits.
Corporation Rules. Under an implied original contract to submit to the rules of a community, whereof we are members, a forfeiture imposed by the by-laws and private ordinances of a corporation upon any that belong to the body immediately creates a debt in the eye of the law, and such forfeiture unpaid works an injury to the party entitled to receive it, for which the remedy is by an action of debt.
Penal Statutes. The same rule may be applied to penal statutes, whereby forfeiture is inflicted for transgressing the provisions of an act. The party offending is bound by the fundamental contract of society to obey the directions of the legislature, and pay the forfeiture to such persons, as the law requires. The application of the forfeiture is either to the party aggrieved, or else to any of the king's subjects in general.
Forfeitures and Penalties. Usually these forfeitures, created by statute, are given at large to any common informer, or in other words, to any one who will sue for the same. These actions are termed popular actions, because they are given to the people in general."
Qui tam Action. Sometimes one part is given to the king, to the poor or to some public use, and the other part to the informer or prosecutor, and then the suit is called a qui tam action, because it is brought by a person qui tam pro domino rege. If the king commences the suit, he shall have the whole forfeiture. But if any one has begun a qui tam action, no other person can pursue it, and the verdict passed upon the defendant in the first suit is a bar to all others, and conclusive even on the king himself.
Collusive Action. To prevent the friends of the offenders bringing a suit to forestall other actions, the statute enacts, that no recovery, otherwise than by verdict, obtained by collusion in an action popular, shall be a bar to any other action prosecuted bona fide. There was a provision of the Roman law, that if a person was acquitted of any accusation, merely by the prevarication of the accuser, a new prosecution could be commenced against him.
Second. Implied from natural reason and the just construction of law.
What it includes. This contract does not arise from the express determination of any court, or the positive direction of any statute, but from natural reason, and the just and true construction of law. It extends to all presumptive undertakings or assumpsits, which though never perhaps actually made, yet constantly arise from the general implication and intendment of the courts of judicature, that every man has engaged to perform, what his duty or what justice requires.
1 Example. Of the former sort, is the forfeiture inflicted upon the hundred, wherein a manåts robbed, which is meant to compel the hundredors to pursue the felon, for if they take him they stand excused. Otherwise the party robbed is entitled to prosecute them by special action on the case for damages.
1. Quantum Meruit. If a man employs another to transact any business for him, or to perform any work, the law implies that he undertook or assumed to pay him as much as his labor deserved. If not paid, the latter has his remedy by an action on the case upon this implied assumpsit, wherein he may suggest that the party promised to pay him as much as he reasonably deserved, and then aver, that his labor was worth such a particular sum, which the defendant has omitted to pay, But this valuation is submitted to the determination of the jury, who will assess such a sum in damages, as they think he merited. This is called an assumpsit on a quantum meruit.
2. Quantum Valebat. This is similar to the former, being only where one takes goods of a tradesman, without expressly agreeing for the price. The law concludes that both parties did intentionally agree, that the real value of the goods should be paid, and an action on the case may be brought, if the vendee refuse to pay that value.
3. Money Received by Mistake, or for Use. Where one has received money belonging to another, without any valuable consideration given therefor, an implied contract to pay over exists. The law construes this to be money received for the use of the owner only, and implies, that the person so receiving promised and undertook to account for it to the true owner. If he unjustly detains it, an action on the case lies against him for the breach of such implied promise, and he will be made to repay the owner in damages, equivalent to what he has detained in violation of his promise. This is a very extensive and beneficial remedy, applicable to almost every case, where the defendant has received money which he ought to refund. It lies for money paid by mistake, or on a consideration which happens to fail, or through imposition, extortion or oppression, or where any undue advantage is taken of the plaintiff's situation.
4. Money Expended for Another's Use. Where one has expended money for the use of another, at his request, the law implies a promise of repayment, and an action will lie on the assumpsit.
5. Insimul Computissent. This action is on a stated account between two merchants or other persons, in which the law implies, that he against whom the balance appears, has engaged to pay it to the other, though there be not any actual promise. The action, which is on the case, declares that the plaintiff and defendant had settled their accounts together (insimul computissent), and that the defendant engaged to pay the plaintiff the balance, but has since neglected to do it.
Action of Account. If no account has been made up, then the legal remedy is by bringing a writ of account, commanding the defendant to render a just account to the plaintiff, or show good cause to the court to the contrary. In this action, if the plaintiff succeeds, there will be two judgments: the first, that the defendant do account (quod computet) before auditors appointed by the court, and when the amount is ascertained, the second judgment is, that he do pay the plaintiff so much as he is found in arrear. By statute, it may also be brought against executors and administrators, as well as against the parties themselves. These actions of account are now seldom instituted, as it is found that the more effectual and prompt way is by bill in equity, where a discovery may be made on the defendant's oath, without relying merely on the evidence, which the plaintiff may be able to produce. When, however, an account is once stated, nothing is more common than an action upon the implied assumpsit to pay the balance.
6. Liability for Negligence. It is inferred, that every one who undertakes any office, employment, trust or duty, contracts with those who employ him, to perform it with integrity, diligence and skill. And if by his want of one of these qualities, any injury accrues to individuals, they have their remedy in damages by a special action on the case. An attorney, who betrays the cause of his client, or being retained, neglects to appear at the trial, by which the cause miscarries, is liable to an action on the case for a reparation to his client. There is in law an implied contract with an innkeeper to secure his guest's goods in his inn; with a common carrier to be answerable for the goods he carries; with a farrier, that he shoes his horse well, without laming him ; with a workman that he performs his business in a workmanlike manner; aliter, an action on the case lies for damages for breach of their undertaking. If an innkeeper opens his house for trav. ellers and exposes his sign, it is an implied engagement to entertain all travellers, and an action on the case will lie against him for damages, if without good reason he refuses to admit a traveller.
1 Example. If a public officer is guilty of neglect of duty or a palpable breach of it, of non-feasance or mis-feasance, as if the sheriff does not execute a writ or makes a false return. If a sheriff or jailer suffer a debtor to escape pendente lite, he liable in an action on the case. But if after judgment, the escape thus takes place, the debtor being charged in execution for a certain sum, the officer is compellable in an action of debt, being for a sum liquidated and ascer. tained. to satisfy the creditor his whole demand.
Where Special Agreement Required. But if one employs a person to transact any of these concerns, whose business it is not, the law implies no such general undertaking, but in order to charge him with damages, a special agreement is required.
Fraud. If one cheats me with false cards or dice, or by false weights and measures, or by selling me one commodity for another, an action on the case will lie for damages, upon the implied contract, that every transaction is fair and honest.
Warranty. In contracts for sales, it is understood that the seller undertakes that the thing sold is his own. otherwise, an action on the case lies against him to exact damages for this deceit. In contracts for provisions, it is implied that they are wholesome. Where a man sells anything, warrantying it to be good, the law annexes a tacit contract, that if it be not so, he shall compensate the buyer, else it is an injury, for which an action on the case for damages will lie. The warranty must be upon the sale, for if made after, and not at the time of the sale, it is void, for it is then made without consideration, neither does the buyer then take the goods upon the credit of the vendor.
Relates to Things in Being. The warranty can only reach to things in being at the time the warranty is made, and not to things in futuro, as that a horse is sound at the time of the sale, not that he will be sound a year hence. But if the vendor knew the horse or goods to be unsound, or in a shape different from what he represents them to the buyer, this artifice shall be equivalent to an express warranty, and the vendor is answerable for their goodness.
If it proves