The plaintiff complains, and alleges: I. That on the .... day of ........, 187.., at a judgment was duly given and made in the ....... Court of for pealed. against the defendant, in favor of one.. [dollars], from which the said defendant ap II. That on the day of........, 187., at the request of defendant, the plaintiff executed an undertaking, a copy of which is hereto annexed. III. That on the ... day of 187., the said judgment was affirmed by the Supreme Court of this State, with ...... dollars costs and damages. V. That on the .... day of paid said . . . . . 187., the plaintiff dollars, upon the said undertaking, to the VI. That the defendant has not paid the same to plaintiff. [Demand of Judgment.] [Copy of the Undertaking.] 40. Legal Liability.-Unless there is a special promise, the defendant's legal liability to pay is an essential fact: 2 Greenl. Ev. 103. 41. Rights of Surety.-The rights of sureties, as against principals and co-sureties are discussed in 1 Parsons on Contracts, 33; Pars. Mer. Law, 39; Baker v. Martin, 3 Barb. 634. 42. Surety, Action by.-In a suit by a surety against his principal, to recover back money paid by him on a judgment against him for the debt of his principal, a transcript of the judgment need not be annexed to the complaint: Harker v. Glidewell, 23 Ind. 219. 43. Undertaking.-Where a defendant undertook to pay any judgment which M. might recover against L., and the plaintiff undertook to save him harmless from such payment to the extent of five hundred dollars, which sum he deposited with the defendant for that purpose, the relation of principal and surety did not exist between them. Under these circumstances, the deposit could not become the money of the defendant till he had paid the judgment, and the plaintiff is entitled to recover the money on the payment or release of the judgment: Solomon v. Reese, 34 Cal. 35. No. 161. [TITLE.] xii. For Repayment of Advances on Services. .., 187., at ...... ......... The plaintiff complains, and alleges: I. That on the .... day of the plaintiff and defendant entered into an agreement, whereby the plaintiff agreed to hire, and the defendant agreed to render his services to the plaintiff as for the term of in consideration of the sum of dollars, to be paid therefor by the plaintiff. 187., at..... ......... II. That on the .... day of ...... the plaintiff paid to the defendant as an advance for his services, to be rendered thereafter, in pursuance of said agreement, the sum of dollars. III. That the defendant wholly neglected and refused to render said services. IV. That the defendant has not repaid the same. [Demand of Judgment.] 44. Acceptance of Order.--The acceptance of an order to pay money, to be deducted from a payment to become due under a contract for work to be performed, is a promise to the payee, and the payee may recover thereon under the common money counts: 1 Hill, 84; 12 Johns. 278; 17 Wend. 206; McClellan v. Anthony, 1 Edm. 184. 45. Non-Performance. The plaintiff must allege and prove non-performance: Wheeler v. Board, 12 Johns. 363. And if the defendant has rescinded, plaintiff need not prove readiness to pay the whole contract price: Main v. King, 8 Barb. 535. 46. Rescinded Contract.—Where an agreement has been rescinded on a contract for services, or performance so neglected as to entitle the plaintiff to rescind, a demand is not necessary to enable plaintiff to recover back advances: Raymond v. Bearnard, 12 Johns. 274; and see Utica Bank v. Van Gieson, 18 Id. 485. 47. Sufficient Allegations.-In a complaint for money expended and services performed, technical words, the meaning of which is long estab lished, rather than phrases of doubtful import, should be used. The complaint ought to state that the money was expended for the use and benefit of defendant, and at his instance and request. So, in regard to the performance of labor: Huguet v. Owen, 1 Nev. 464. 48. Void Contract. If money has been paid or services rendered in the performance of the conditions of a void contract by one party thereto, and the other party fails to voluntarily perform on his part, the injured party has no remedy at law upon the contract. He may, however, under such circumstances, disaffirm such contract, and maintain his action at law to recover back money so paid, or the value of services so rendered: King v. Brown, 2 Hill, 485; Baldwin v. Palmer, 10 N. Y. 234; Fuller v. Reed, 38 Cal. 99. ....., 187., at the defendant hired him as [clerk, or other wise], at a salary of ........ dollars day of 187., the plaintiff until the III. That the defendant has not paid the said salary [or that no part of said salary has been paid, except, etc.] [Demand of Judgment.] 1. Demand.-No demand is necessary. Bringing the action is a suffidemand on a contract to pay generally, and without time or terms specified. It is a debt payable when the services are performed, and no previous demand of payment is required: Lake Ontario R. R. Co. v. Mason, 16 N. Y. 451; Ernst v. Bartle, 1 Johns. Cas. 319. 2. Effect of Special Contract.-Where by the terms of a contract parties performing labor under it are to be paid at the end of each month, for the labor performed to that time, and they are not paid at the stipulated time, and are, by reason thereof, compelled to abandon the work, they have the right to do so, and are entitled to recover for the work done and not paid for, pro tanto, at the contract price price: Dobbins v. Higgins, 78 III. 440. 3. Entire Contract. Where a person agrees to work for a certain period, at a certain price, or to perform certain services for such an amount, he cannot break off at his own pleasure, and sue upon the contract for the work so far as he has gone: Hutchinson v. Wetmore, 2 Cal. 311. In such a case, performance is a condition precedent to payment: Id. In a suit to recover for services for half a year, under a contract to work a whole year, plaintiff having quit, it requires slight evidence of assent or agreement to apportion the contract and allow plaintiff to recover: Hogan v. Tillow, 14 Cal. 255; see further, "Employment," subd. four, chap. 4. A contract may be entire where payment is stipulated to be made monthly, where a note was to be given by the employer for the last four months' labor yet to be done, on a contract of eight months' duration: Hutchinson v. Wetmore, 2 Cal. 311. Where one is employed by another under a contract, at a stated salary, payable monthly or at a stated time, as clerk or business agent, and the employee neglects his business, the employer is not precluded from suing for damages for neglect, by payment in full of employee's wages, or by not setting up a counter claim in an action by employee for his wages: Stoddard v. Treadwell, 26 Cal. 294. Where a party contracts for a consideration in money, to find a purchaser for certain lands, it is a contract of employment, and not a contract for the sale of land within the meaning of the Statute of Frauds: Heyn v. Phillips, 37 Cal. 529. But where a part of the remuneration was to be land, the contract was entire, and if void as to part under the Statute of Frauds, is void in toto, and could not be enforced: Crawford v. Morrill, 8 John. 255; Van Alstine v. Wimple, 5 Conn. 164. But if services have been performed on such a void contract, the injured party may disaffirm the contract, and maintain his action at law for services rendered: King v. Brown, 2 Hill, 485; Baldwin v. Palmer, 10 N. Y. 232; Fuller v. Reed, 38 Cal. 99. 4. Extra Pay.-An express agreement for extra pay must be shown where a party works for a monthly salary: Cany v. Halleck, 9 Cal. 198. 5. Form of Complaint.-A declaration for labor done or services performed generally, without specifying them in particular, is good: Edwards v. Nichols, 3 Day, 16; compare Willamette Falls Transportation Co. v. Smith, 1 Or. 171. 6. Joint Services.-Where two persons are employed by a claimant of a tract of land to procure a confirmation of the same, such service is not joint, and a separate action may be maintained by such agents for their expenses thus incurred: Conner v. Hutchinson, 12 Cal. 126. 7. Jurisdiction-A British seaman on board a British vessel of which a British subject is master, may, when discharged by the master in a port of the United States, without any fault on the part of the seaman, sue for and recover his wages in a state court: Pugh v. Gillam, 1 Cal. 485. 8. Performance of Conditions. If the contract contains special provisions as to the mode of performance, the proper mode of declaring is still on the contract itself, and not on the general counts, setting it out at length, or in substance, with proper averments, to show that the conditions to the plaintiff's right of recovery have all been complied with: Adams v. Mayor, etc., of N. Y., 4 Duer, 295; Atkinson v. Collins, 30 Barb. 430; S. C. 9 Abb. Pr. 353; Brown v. Colie, 1 E. D. Smith, 265; Wyckoff v. Myers, 44 N. Y. 143. 9. Services of a Substitute. The plaintiff may recover for work and services done by his substitute under a contract made by defendant with him, provided that the services of a particular person were not contracted for, and that no other person could, under the contract, fill the place of the employee: Leet v. Wilson, 24 Cal. 398. Under a general complaint for work and labor, the plaintiff may recover on proof of a special contract fully completed: Hurst v. Litchfield, 39 N. Y. 377. Where there is a special contract between principal and agent, by which the entire compensation is regulated and made contingent, there can be no recovery on a count for a quantum meruit: Marshall v. Baltimore and Ohio R. R. Co., 16 How. (U.S.) 314. 10. Service for the Public.-Where a service for the benefit of the public is required by law, and no provision for its payment is made, it must be regarded as gratuitous, and no claim for compensation can be enforced: Anderson v. Bd. Com., 25 Ohio St. 13. 11. Sufficiency of Complaint.-Where a complaint for work, labor, and services, alleged an indebtedness in a sum certain therefor, but omitted to allege specially the value of the same or a promise to pay; and defendant, without demurring, put in an answer denying indebtedness, admitting services performed, and setting up payment in full, and there was a verdict for plaintiff; whatever the defects of the complaint may be, they were cured by defendant's pleading and by the verdict: McManus v. Ophir S. M. Co., 4 Nev. Rep. 15. 12. When Action Lies.-The action for work, labor, and services lies upon the contract. If nothing remains to be done by the contractor but payment of the stipulated price, plaintiff may rest upon the duty raised by the law on the part of defendant to pay the price agreed, or he may plead the express agreement, and allege performance: Farron v. Sherwood, 17 N. Y. 227. Or excuse for non-performance, and allege part performance: Wolfe v. Howes, 20 N. Y. 197. If the contract has been abandoned by agreement, or rescinded by the wrongful act of a party, or its execution is incomplete by reason of an excuse: Farron v. Sherwood, 17 N. Y. 227; Wolfe v. lowes, 20 Id. 197. Where, however, there has been a written contract, it must be produced on the trial, or its absence accounted for: Clark v. Smith, 14 Johns. 326, and cases there cited; 18 Johns. 169; 19 Id. 205; 1 Sandf. 206; 24 Wend. 60; 22 Barb. 239; 4 Duer, 295. [TITLE.] No. 163. ii. For Services at a Reasonable Price. The plaintiff complains, and alleges: 187., and the ....day of ......., 187., at........, he [made sundry repairs on several articles of furniture] for the defendant, at his request. II. That the said services were reasonably worth... dollars. III. That defendant has not paid the same [or that no part thereof has been paid, except, etc.] [Demand of Judgment.] 13. Presumption.-A person enjoying the benefit of the services of another, is presumed to be bound to pay therefor what they are reasonably worth: Moulin v. Columbet, 22 Cal. 509. But this presumption may be rebutted by proof of agreement at a fixed amount: Id. Where a hired person continues in employment after the term of the contract, the presumption is that the same wages are to be continued under the new employment, and the servant cannot recover on a quantum meruit: Nicholson v. Patchin, 5 Cal. 475. 14. Promise Implied.-The general rule of law is, while a special contract remains open or unperformed, the party whose part of it has not been done cannot sue in indebitatus assumpsit, to recover a compensation for what he has done, until the whole shall be completed. But the exceptions from that rule are cases in which something has been done under a special contract, but not in strict accordance with it; but if the other party derives any benefit from the labor done, the law implies a promise on his part to pay such a remuneration as the work is worth; and to recover it an action of |