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no price was agreed upon, which merchandise was delivered on the defendant's order, and the same is reasonably worth the sum of $"]

That said sum is due from the defendant to the plaintiff, and no part thereof has been paid, [or, that no part of said sum has been paid except the sum of $and there is still due from the defendant to the plaintiff, and unpaid thereon, the sum of $"]?

Wherefore the plaintiff demands judgment against the defendant for, &c.

(No. 33.)

For labor and services, price agreed on.

Title of the Cause.

The plaintiff complains of the defendant:

That the defendant, on the — -day of contracted with the plaintiff to pay him the sum of $ per month, for each and every month that the plaintiff should serve the defendant in and about the business of, [stating it,] and that pursuant to said contract defendant has served said plaintiff, in and about said business, for the period of months from said

day of — and

1 It is allowable and proper to allege what payment has been made on the demand, and to state the exact balance claimed to be due. (See Blodgett v. Wilkinson, 12 How., 326.)

2 In cases of a special contract between the parties, where it has been rescinded or abandoned or put an end to by the wrongful act of the defendants, the plaintiff may resort to the common counts. So, where the work has been completely executed; so, also, where the work has been done pursuant to the contract, except as to time, and the defendant permits it to be done after the time has expired, the common counts are sufficient. But if the contract contains such spe

said defendant has not paid plaintiff for the same, or any part thereof, except the sum of $— paid in or about the, &c.

Wherefore the plaintiff demands judgment for, &c.

( No. 34.)

For labor and services, price not agreed on.

Tille of the Cause.

The plaintiff complains of the defendant:

That on or about the day of —, at defendant's request, he entered into the said defendant's employ and service, in the business of, [stating general nature of employment,) and so continued for one year. And the plaintiff alleges that his said services were reasonably worth the sum of $- -, and that he has not been paid anything on account thereof.

Wherefore the plaintiff demands judgment, &c.

cial provisions as require an allegation of performance, before the plaintiff would be entitled to recover, then the proper mode of pleading is on the contract itself and not on the common counts. Such was the rule before the Code ; and although the same specialty in pleading may not now be required, yet the same certainty in the statement of material matters is still required. (Per Slosson, J., Adams 0. The Mayor, &c., of New-York, 4 Duer, 305.)

1 As to pleading request, see note, post, p. 429.

(No. 35.)

For money lent.

Title of the Cause.

The plaintiff complains of the defendant:

That on the day of — he loaned the defendant, for his accommodation and at his request, and without any time being agreed upon for repayment, the sum of $— That he has demanded payment of the same, which the defendant refused, and still refuses, and neglects to make.1

Wherefore the plaintiff demands judgment for, &c.

1 The old common money counts, it is held, are still good, as for money lent,” for “money had and received,” for “money paid, laid out and expended,” &c. (Adams v. Holley, administrator, &c., 12 How., 327 ; and see Pleadings, 262- 265.) The old form of the money count in an action of debt (with some trifling variation) may therefore be used or adopted in all these cases. The above complaint, if stated in such form, would be as follows:

“ The plaintiff complains, &c., that on the day of the defendant became and was indebted to the plaintiff in the sum of $ for so much money lent by said plaintiff to said defendant, to be paid by the said defendant when he should be thereunto afterwards requested ; yet the said defendant, although requested, has not paid the same, in whole or in part, and said sum is still due. Wherefore the plaintiffs demand judgment, &c."

The forms in the text, however, are intended to correspond more nearly with the facts of each case, and for that reason seem to me to be preferable. A complaint may be properly drawn, it seems, for the balance of an account, for money lent, money paid, had and received, &c., without a more ar statement. (Cudlipp v. Whipple, 4 Duer, 610.)

( No. 36.)

For money had and received to plaintiff's use.

day of

Title of the Cause.

The plaintiff complains of the defendant:
That, between the day of — and the

the defendant, being the agent of the plaintiff in, [stating generally the employment,] collected and received from divers persons certain sums of money, for and on account of the plaintiff, amounting in the whole to the sum of $

e, no part of which has been paid by defendant to the plaintiff, although payment thereof has been demanded.

Wherefore the plaintiff demands judgment against the defendant, for, &c.

(No. 37.)

For money paid, laid out and expended for the use of the

defendant.

Title of the Cause.

The plaintiff complains of the defendant:

That on or about the day of — he paid one J. S., for and on account of a debt contracted with said J. S. by the defendant, and at the defendant's request,' the sum of

· The fact of a request should be alleged whenever it can be proved. So also in regard to a promise on the part of defendant to pay, &c It is proper to allege that the defendant promised, when such is the fact to be proved. But if the request or promise be a mere implication of law, arising from other facts, it is neither necessary nor proper to state it. The facts only, which raise the legal inference, should be alleged. (Pleadings, 263 – 265 ; see. also, Scovel 0. The American Mineral Co., 11 How., 24.)

$—no part of which sum has been repaid by the said defendant to the plaintiff, although payment thereof has been demanded.

Wherefore the plaintiff demands judgment of the defendant, for, &c.

(No. 38.)

For several items of work, materials furnished and money.

Title of the Cause.

The plaintiff complains of the defendant:
That on the

day of

the defendant was indebted to the plaintiff in the sum of $— for the work and services of the plaintiff in the defendant's business, as, (stating it generally,] done and performed for defendant between the

day of

and the day of —, which were reasonably worth $—

Also, for materials, to wit: [Stating what kind,] furnished, during said period, by plaintiff to the defendant, in and about said work, and which were worth $

Also, for the sum of $—, paid and expended by plaintiff for defendant, on the —

day of

to one J. S., for, [stating for what,] amounting in all to the said sum of $- -, which is still due from the defendant to the plaintiff, and no part thereof paid.

Wherefore the plaintiff demands judgment against the defendant, &c.

In an action to recover many items of demand, claimed by one and the same right, the items may be, for the sake of brevity and convenience, thrown into one count (cause of action). (Longworthy v. Knapp, 4 Abbott, 115; Adams v. Holley, administrator, 12 How., 326.)

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