198 EFFECT OF NON ASSUMPSIT PLEADED TO INDEBITATUS COUNTS.

§ 199. The doctrine that the plea of non assumpsit puts in issue the consideration as well as the promise, is one which cannot now be disputed (r); and, consequently, a defendant will be allowed, under such plea, to avail himself of any material variance between the consideration for his promise alleged in the declaration, and that proved by the production of the written agreement (s). Nay, he may show the absence of any consideration sufficient to sustain his promise, because, by disproving the consideration, he will of course disprove the contract (t). Again, if a declaration describes the terms of a contract in language denoting that certain acts, which the plaintiff has engaged to do, are independent of, or concurrent with, the act to be done on the part of the defendant; and then goes on to allege that, although he the plaintiff was ready and willing to perform his part of the agreement, yet the defendant had not done the act he had engaged to do; this latter, under the plea of non assumpsit, may, it seems, show that the acts to be done by the plaintiff were in the nature of conditions precedent, and had not been performed; for, by giving such evidence, the agreement will appear to be a conditional agreement, and not the absolute agreement declared upon (u).

§ 200. In actions of indebitatus assumpsit, the general issue denies every fact from which a promise to pay on request can be implied by law; but it does not deny the breach of such promise. The judges have thus illustrated this rule :-" In an action of indebitatus assumpsit for goods sold and delivered, the plea of non assumpsit will operate as a denial of the sale and delivery in point of fact; in the like action for money had and received, it will operate

Page, 6 M. & Gr. 202. See also Nash v. Breeze, 11 M. & W. 352; and Whittaker v. Mason, 2 Bing. N. C. 359; 2 Scott, 567, S. C.; Wade v. Simeon, 2 Com. B. 548, 561.

(r) Redmond v. Smith, 8 Scott, N. R. 256, per Tindal, C.J. ; 7 M. & Gr. 472, S. C. (8) Beech v. White, 12 A. & E. 668; 4 P. & D. 399, S. C. cited ante, § 192. (t) Brydges v. Lewis, 3 Q. B. 603, 608; Raikes v. Todd, 8 A. & E. 854, per Lord Denman. The case of Passenger v. Brookes, as reported in 1 Bing. N. C. 587, is now overruled, though the fuller report given in 1 Scott, 560, may be sustained. See Bennion v. Davison, 3 M. & W. 183, per Parke, B.; and Nash v. Breeze, 11 M. & W. 355, per id.

(u) Kemble v. Mills, 1 M. & Gr. 757, 770, 771, per Maule, J.; 2 Scott, N. R. 121, S. C.

NON ASSUMPSIT IN ACTION FOR GOODS SOLD.

199

as a denial both of receipt of the money and the existence of those facts which make such receipt by the defendant a receipt to the use of the plaintiff" (v). In addition to these examples, which, it must be confessed, are somewhat meagre, it may be observed, that, whenever the defendant can show that in fact no debt ever existed before action brought, he may do so under the plea of the general issue. For instance, if the action be for goods sold and delivered, he may defend himself under this plea, by proving that they were paid for by ready money (w); that they were sold on credit, which was unexpired when the action was commenced (x); that they were sold under a condition, that if they did not answer their purpose, nothing should be paid for them, and that in fact they did not answer their purpose (y); that they were sold under any special agreement, which has not been performed (z); that they were delivered under a contract of barter (a); or that they turned out to be utterly useless (b). Under this plea he may show in reduction of damages, that the goods supplied were of less value than was prescribed by the contract (c). So, the defendant will succeed under the general issue, if the action be brought for goods sold and delivered, and the contract prove to be one for the supply of materials, to be used by the plaintiff in the construction of a building or other fixture for the defendant; for in such case, the proper mode of declaring will be on a count, either for work, labour, and materials, or for erecting and constructing the building or fixture (d). But the defendant cannot, under non assumpsit, show either generally, that at the time of the sale the goods did

(v) Reg. Gen. H. T. 4 Will. 4, I. Assumpsit; 5 B. & Ad. vii. viii.

(w) Bussey v. Barnett, 9 M. & W. 312. But see Littlechild v. Banks, 7 Q. B. 739. (x) Broomfield v. Smith, 1 M. & W. 542, overruling Edmonds v. Harris, 2 A. & E. 414; 4 N. & M. 182, S. C.

(y) Grounsell v. Lamb, 1 M. & W. 352.

(≈) Broomfield v. Smith, 1 M. & W. 543, per Lord Abinger; Garey v. Pyke, 10 A. & E. 512; 2 P. & D. 427, S. C.; Hayselden v. Staff, 5 A. & E. 153; 6 N & M. 659, S. C. (a) Harrison v. Luke, 14 M. & W. 139.

(b) Cousins v. Paddon, 2 C. M. & R. 547; 4 Dowl. 488; 5 Tyrw. 535, S. C. recognised by Lord Denman in Hayselden v. Staff, 5 A. & E. 162; Baillie v. Kell, 4 Bing. N. C. 638; 6 Scott, 379, S. C.; Chapel v. Hickes, 2 C. & Mee. 214; Allen v. Cameron, 3 Tyrw. 907. These cases overrule Roffey v. Smith, 6 C. & P. 662. (c) Cases cited in last note. (d) Clark v. Bulmer, 11 M. & W. 243; Cotterell v. Apsey, 6 Taunt. 322; Tripp v. Armitage, 4 M. & W. 687. See Parsons v. Saxter, 2 C. & Kir. 266.

200

NON ASSUMPSIT IN ACTION FOR WORK AND LABOUR.

not belong to the vendor, or specially, that he was not entitled to them at that time, and that afterwards they were reclaimed by the real owner (d). In an action for goods bargained and sold, a defence that they were sold under a special contract, that they should be shipped within the current month, and landed in London within a given time, which conditions were not performed, is admissible under the general issue (e).

§ 201. In an action for work and labour, it may be shown, under non assumpsit, that the work was done so negligently and unskilfully as to be valueless (f); or that it was done under an agreement that the plaintiff should claim no remuneration, except for disbursements (g); or under a contract, which has been broken by the plaintiff (h); or under some special contract, which did not entitle the plaintiff to maintain an action of indebitatus assumpsit (i); or that part of the work was done, or part of the materials was supplied by the defendant, and that the value of such part amounted to so much of the plaintiff's claim as was not covered by the other pleas (j). In the cases which established this last proposition, it was contended that the defendant should have pleaded a set-off, but the Courts of Common Pleas and Exchequer respectively held, that the amount of the work done, and materials supplied by him, was not a matter of set-off, but of deduction.

§ 202. If the plaintiff declare on a count for money had and received, the defendant, under the general issue, may prove any facts, which show that the money was not received to the sole use of the plaintiff; as, for example, that it was the proceeds of goods

(d) Walker v. Mellon, 2 C. & Kir. 346. In Allen v. Hopkins, 13 M. & W. 94, this last defence was specially pleaded.

(e) Gardner v. Alexander, 3 Dowl. 146; 1 Scott, 281, S. C.; Hayselden v. Staff, 5 A. & E. 161, 162. See Sieveking v. Dutton, 4 Dowl. & L. 197.

(f) Bracey v. Carter, 12 A. & E. 373; Hill v. Allen, 2 M. & W. 283. These were actions brought by attornies. (g) Jones v. Nanney, 1 M. & W. 333.

(h) Kewley v. Stokes, 2 C. & Kir. 435, per Erle, J. The plaintiff under this common count cannot prove that the breach of the contract arose from the defendant's default, id.

(i) Cleworth v. Pickford, 7 M. & W. 314, 320, 321, per Lord Abinger; Collingbourne v. Mantell, 5 M. & W. 289.

(j) Turner v. Diaper, 2 M. & Gr. 241; 2 Scott, N. R. 447, S. C.: Newton v. Forster, 12 M. & W. 772.

NON ASSUMPSIT-INDEBITATUS COUNTS.

201

pledged to the defendant, with a power of sale, by persons who, being joint-owners with the plaintiff, were allowed by him to hold the goods as their own, and to whom the defendant had made advances equal to the value of the goods (j). In actions for money lent or paid, the defendant, under the general issue, may prove that the loan or payment was made under such circumstances as to raise no implied promise of repayment (k), or that the parties entered into a contract inconsistent with the indebitatus contract declared on; as, for instance, a contract that the plaintiff should lend money to the defendant, or pay money for him, in consideration of the defendant endorsing a bill to him, or depositing with him bonds and other securities, with a power to sell them and reimburse himself, which conditions were performed by the defendant (1). If the action be upon an account stated, the defendant may show, under non assumpsit, that the account was in fact incorrect, even though he has previously admitted its correctness; because the issue is not simply whether there was an account stated or not, but whether the defendant was or was not indebted on such account stated (m). It seems, however, that he cannot rely on a subsequent account stated, in which the balance was found to be in his favour, because, in law, the second account will be regarded either as a payment or as a set-off: and in either event must be specially pleaded (n).

§ 203. Again, on the common count for use and occupation, the defence that the premises were held under a demise at a rent payable quarterly, and that before the rent became due, either the plaintiff (0), or his superior landlord (p), evicted the defendant, or the former accepted a surrender of the term from him, or that a mortgagee of the premises gave notice to the defendant, before the rent was due, to pay it to him, may be given in evidence under

(j) Solly v. Neish, 2 C. M. & R. 355; 5 Tyr. 625; 4 Dowl. 248, S. C., recognised in Hayselden v. Staff, 5 A. & E. 161. See also Wainwright v. Clement, 4 M. & W. 396, per Parke, B.; Clark v. Dignam, 3 M. & W. 478.

(k) Worrall v. Grayson, 1 M. & W. 166; Gregory v. Hartnoll, id. 183.

(1) Morgan v. Pebrer, 3 Bing. N. C. 457; 4 Scott, 230, S. C.; Maude v. Nesham, 3 M. & W. 502. (m) Thomas v. Hawkes, 8 M. & W. 140.

(n) Fidgett v. Penny, 1 C. M. & R. 108; 4 Tyr. 650; 2 Dowl. 714, S. C. (0) Prentice v. Elliott, 5 M. & W. 606; Dodd v. Ackiom, 6 M. & Gr. 672. (p) Selby v. Browne, 7 Q. B. 620.

202

NON ASSUMPSIT-USE AND OCCUPATION-SPECIALTY.

the general issue (p); though, in this last case, if the mortgagee's claim had been made after the rent had accrued, and the plaintiff's right of action had consequently vested, the defence must have been pleaded in confession and avoidance (g). So, in a similar action, it seems that the defendant may show, under the plea of non assumpsit, that the premises were uninhabitable (r), when such a defence is a bar to the action (s); or that he was let into possession by the plaintiff, under a contract to purchase, which contained no stipulation as to the terms of occupancy, and which afterwards went off in consequence of the plaintiff's inability to make out a good title (t); or, in short, the defendant may give in evidence any other fact, which proves that he never so occupied the premises as to render him liable, in point of law, to the payment of rent (u).

§ 204. Under the plea of non assumpsit, the defendant may always, whether the plaintiff has declared on a special or indebitatus count, show that the demand sought to be enforced in the action arose out of a contract by specialty; though, where, on a loan, any mortgage or other deed has been taken by way of collateral security, and such deed contains no covenant to repay the sum advanced, an action for money lent, either in assumpsit or debt, may well be supported (v). If there has been an original independent simple contract, which is merged in a deed, it would probably be deemed necessary to plead the deed (w). Again, under the general issue, the defendant may always show, that the actual agreement between the parties was materially different from that declared upon (x).

(p) Waddilove v. Barnett, 2 Bing. N. C. 538; 2 Scott, 763; 4 Dowl. 347, S. C., recognised in Hayselden v. Staff, 5 A. & E. 159.

(2) Id.

(r) Smith v. Marrable, 11 M. & W. 5, 8, 9, per Parke, B.

(s) See same case, and compare it with Sutton v. Temple, 12 M. & W. 52; Hart v. Windsor, id. 68.

and

(t) Winterbottom v. Ingham, 7 Q. B. 611. See Hall v. Vaughan, 6 Price, 157; Hearn v. Tomlin, Pea. R. 192, per Lord Kenyon; Howard v. Shaw, 8 M. & W. 118; Kirtland v. Pounsett, 2 Taunt. 145.

(u) Smith v. Marrable, 11 M. & W. 8, 9, per Parke, B.

(v) Yates v. Aston, 4 Q. B. 182.

(w) Edwards v. Bates, 7 M. & Gr. 590, 601; Filmer v. Burnby, 2 M. & Gr. 529; Scott, N. R. 689, S. C. See also Yates v. Aston, 4 Q. B. 182.

(x) Williams v. Vines, 6 Q. B. 355; Nash v. Breeze, 11 M. & W. 352; Heath v. Durant, 12 M. & W. 438; I Dowl. & L. 571, S. C.; Sharland v. Leifchild, 11 Jurist, 523.