Сн. 9. Art. 22. Harris c. Oke. has recovered on the common counts, monies in lieu of coun terfeit monies paid him, not received by him at his risk; Ch. 170, a. 5, s. 7, as to tenders &c. In the above bank case, the court went on this principle, to wit: If A propose to borrow money of me, on good security proposed and described, to be repaid in 90 days, and I lend him the money, and receive of him security, apparently such as he proposed, as for instance his and B's note endorsed, to appearance, by C, and it is found the security is bad, as that the endorsement is forged, for instance, I may view the note as waste paper and disaffirm it, and sue A and B immediately, and within the 90 days, for money had and received. In which case I do not claim through or under the note, but for monies advanced to them, obtained by fraud, and on a security worth nothing, and which I may treat as a nullity. So are many and all the cases on the point. § 11. In this, as in Boardman's case above, there was a question, whether the partnership contract authorized Grafton to raise monies for the general partnership, in such a criminal manner, and thereby bind his partner Gore, unless proved, as in the bank case it was, or fairly presumed, Gore and Grafton received the plt's. monies to their use. As to this new and nice question, Boardman's case seems to be left in some obscurity, though in the main rightly decided. He properly rejected the note, the express contract, as a nullity imposed on him by fraud and forgery, and resorted to his common count, the implied contract; on this Gore must have been deemed liable, either because the plt's. monies came to the firm's, so to Gore's use, this is left doubtful; or because Gore in some way authorised or trusted Grafton to get the plt's. monies as he did. If any such trust or authority, it clearly resulted from the partnership, which for any thing that appears, was general and in common form. If an honest man and a rogue are partners, in such form, and the honest one knows not but the other is honest, how does such a partnership authorise the rogue to do what Grafton did in this case, so as to make the honest one liable on implied contract, is a question not settled in the books, and but rarely found made in them. But in cases of torts, in subsequent chapters, we shall find the liability well settled, of one who trusts or employs another to act for him. 12. Lord Mansfield (Bul. N. P. 139,) spoke of a new practice, to allow the plt. to go upon his common count where by the former practice he could not. And Parsons, C. J. in Keyes v. Stone, observed, that "the opinion of the court below was formerly holden to be law," and referred to Weaver v. Boroughs, as an authority, which law held the plt. to his special contract while in force; then observed, Lord Mansfield overruled this practice in the year 1759, in Harris v. Oke; that in 1781, in Payne v. Bacomb; Ashurst J. adhered to the old rule and directed a non-suit, but it was set aside, and Parsons approved what he called the new practice. Thus this old practice is admitted, and now the true question is, has there been any change in the law in this respect; clearly none in principle, and as this subject is important and has been loosely considered, the inquiry ought to be pursued. Сн. 9. Art. 22. 13. The rule still is, the plt. must go on his special contract while it remains in force, not varied by mutual consent. I shall now shew that this is, and always has been the law, by abridging and stating all the principal authorities. I begin with referring to the cases above. In Young v. Preston, in error, the court held the contractee to his special contract, though he was prevented finishing his work by the contractor, whereby he broke his contract, and subjected himself to an action on it, but he did not rescind it, a distinction carefully to be attended to; further held, whenever one can have an action on a sealed centract, he must resort to it. Howes v. Barker, where the law requires a written promise, it raises no implied one. Worthen v. Stevens, s. 2, the true principle is stated as far as it goes; the same 3 East 75 to 85, and 7 D. & E. 584, cited s. 2. Whipple v. Dow & ux. s. 3, there never was a valid special contract, so the implied one was never suspended. Whiting v. Sullivan, s. 4, the true principle again stated, and added, the law will not imply a party's promise against his express declarations. Cooke v. Munstone, s. 4, all the old true principles were adopted, though, as in the other cases cited, long before 1759 and 1781. Pierce v. Fellows, s. 5, the true principle again stated in Massachusetts A. D. 1783. Hunt v. Silk, s. 6, contains a principle not disputed. Keyes v. Stone, s. 7, already commented upon. Weaver v. Burroughs, s. 7, admitted to have been decided on the old law. Harris v. Oke, s. 7, no proof a special contract was made, so not to the purpose; the 12 Geo. 1. same Payne v. Bacomb, s. 7. 1744. §14. This case is fully stated Ch. 36, s. 19. It is said, Bul. N. P. if the plt. prove a special agreement, and the work done, not 134, Kech's pursuant to it, he shall recover on the quantum meruit, other- casé A. D. wise he will not recover at all. In this case (an old one) evidently a fact existed not stated; that is the deft's. acceptance of the plt's. work done, not according to his special contract; this is clear; for if A contract to build me a brick house for $5,000, of certain dimensions, and he builds a wooden one, clearly he cannot recover on his special contract, for he has, in no part, performed it; and clearly not for the wooden house, if I reject it, and in no sense accept or admit it; but if, by my conduct, I, any way, expressly or impliedly, accept the Сн. 9. Art. 22. 2 Phillips' Evid. 83, cites Bos. & P. 351, 355, Cooke v. 3 Taun. 52. 2 East. 145, Hulle v. wooden house, or approve his building it, he will recover for it on his quantum meruit; because it being dehors the special agreement about a brick house, this agreement does not apply, but is varied or deviated from by mutual consent, and there results, on my part, an implied contract to pay for his work on the wooden house a reasonable sum, by my expressly or impliedly admitting it. In fact, he and I give rise to a new and distinct contract, this case explains the last part of my rule, s. 13. Linningdale v. Livingston, s. 7, rested on the same ground rightly understood; the plt. and deft. both broke the special agreement, and months after the plt., by it, was to deliver the logs, he delivered them, or most of them in fact, and the deft. accepted and used them; then as above, resulted the implied promise on the new case; the error was in admitting the old agreement to regulate the price in this new case. Tuttle v. Mayo, s. 7, is there well explained. Rex v. Laindon, s. 8, the same. So Boardman v. Gore and Grafton, and the M. & M. Bank v. same, have been sufficiently stated already; s. 9, 10, 11, and the cases therein cited. §15. Gibson & al. v. Minet & al. in error, 1 H. Bl. 569 to 625, A. D. 1791; in the House of Lords, see Ch. 20, a. 21, s. 21; Archer v. Bank of England, Ch. 20, a. 6, s. 2, there stated; see Irving v. Wilson, ch. 9, a. 7, s. 2; Swan v. Steal, Ch. 52, a. 2, s. 15; Willet v. Chamber, Ch. 52, a. 2, s. 3; Smith & al. v. Jameson, Ch. 9, a. 2; Collis v. Emett, Ch. 20, a. 13, s. 3; Tatlock v. Harris, Ch. 20, a. 14, s. 2; these cases relate to the principles in Boardman's case above. 16. This subject ought to be examined still further, and the cases still later noticed, because any loose rules evidently give the plt., one party only, very undue advantages, as they very often will give him an election to go on the express contract or the implied one, as he sees will best suit his purpose, a consideration of far more importance than some inconveniences in strict practice. Phillips, one of the latest writers on the law of evidence, has an express article, "evidence in assumpsit on the common counts." He does not notice any such new practice, as is mentioned in Keyes v. Stone, nor does his American editor, Munstone. Mr. Dunlap. Phillips proceeds on the principles of Cooke v. Munstone, stated above, this art. s. 4; the principles stated thus, "where a party declares on a special contract, seeking to Heightman, recover thereon, but fails altogether in his right so to do, he may have recourse to a general count, if the case be such that supposing there had been no special contract, he might still have recovered for money paid, or for work and labor done; thus in the case of a plt. suing a deft., as having built a house for him according to agreement, if he fail to prove that he has stated at large, Ch. 57, a. 2, s. 26; and some ni si prius cases 451. Cн. 9. Art. 22. built a house according to agreement, he may still recover for his work and labour." This last part is Kech's case properly explained as above, s. 14. Phillips adds, if the special contract be not rescinded, but remains operative, the plt. cannot re- Also so is 14 cover on his general count, if he fail to prove his special con- Johns. R. tract; then speaks of special contracts altered by mutual consent, and the work, as within the first contract, is paid for by it, and as far as not within, on a quantum meruit. So is the law; so was the old law, and these principles are too sound to admit of any others. And the rescinding, says Phillips, of the contract must be in toto, so that the parties may be restored to the same situation in which they were before placed. 320, Clarke Hunt v. Silk, 6. 17. The law thus stated by Phillips, Mr. Dunlap approv- Raymond & ed, except where the deft. defeats the special agreement by al. v. Bearhis act, as if he put an end to it, or prevents the plt's. per- nard. formance of it, then he may resort to his common count; nothing seen in Phillips' text or the English cases, to the contrary; all agree if the deft. defeat by his acts the special contract, he has no right to hold the plt. to it, but leaves him at liberty to depart from it, and to resort to the implied promise. Mr. Dunlap refers to Linningdale v. Livingston, Champlin v. Butler; Stra. 648, Weaver v. Burroughs; 2 D. & E. 105, Toussaint v. Martinent, all stated above; also cites 12 Johns. R. 374; 13 do. 94, 56, 359; 3 do. 439; 6 Taunt. 322; and states the case 12 Johns. R. 374, Raymond & al. v. Bearnard, thus; "so where part of the purchase money for goods the plt. had agreed to call for, and take away within a certain time, was paid in advance, and he did not call within the time, but some time after its expiration demanded them, and the deft. refused to deliver them; held, the plt. was entitled to recover back the money paid in advance." Here the plt., by his own negligence, defeated the special agreement so far as to lose the benefit of it. This case may have been decided on a mere equitable view of it, as that the deft. ought not to keep the goods and advance-money both. If this was earnest meant to be forfeited, the decision was wrong. If decided on any principles of contracts, it was because the parties, by their acts rescinded the agreement, the plt. by his negligence, and the deft. by his refusal. But as to rescinding contracts, see the whole of chapter 122; also Ch. 51, a. 1, s. 9, &c.; Ch. 133, a. 8, s. 8; Ch. 32, a. 13; Ch. 139, a. 5, a. 7; Ch. 171, a. 4, s. 16, a. 13, s. 17. Mr. Dunlap also states the case of Penoyer & al. v. Hallet, 15 Johns. R. 332, where as in the common case, the performance of the whole voyage is a condition precedent to the payment of any freight. 18. From all which it appears if the parties make a proper special contract, and all perform, no suit is necessary; VOL. I. 30 CH. 9. hence there must be a breach of it to give rise to a suit. Then, Art. 22. 1st, if the plt. perform his part and the deft. neglect his, the plt. (suing in time,) of course has his action on it, and on this only. 2. If the plt. do not perform his part, he has no suit ; if in part, none, unless that in some way be accepted; if a part and something else, his remedies, if any, are two. As if A agree to build me a house for $5,000, and a barn for $1,000, one entire contract; he does neither, he has no action. If he build the house only, he has no action, unless the jury can find I accepted it, as part performance gives him a right but by my assent to it; and if I any way assent to it, his right is the $5,000. If he build the house, and instead of the barn, a fence, the case of the house is as last stated; as to the fence he has no claim, unless I accept it expressly or impliedly; if I accept it, the case of the fence comes within Kech's case, as stated s. 14. 3. If the deft. by rescinding the special contract, or otherwise hinder the plt's. remedy on it, he then may resort to an implied promise, and go on his common counts, for the law will imply that if I prevent the special contract being sued, I submit to the justice and equity the law intends and implies. 10 Mass. R. 230, 350, Richards v. Killam. 19. Assumpsit will not lie for a fraudulent assignment under seal of a bond, though the bond be forged. The assignment containing special covenants as to the recovery of the money suppposed to be due on the bond assigned, this action was on an implied promise on the deft's. part, that said bond. was genuine. The party makes a written or verbal promise, or the law implies one. To state every sufficient consideration must be an endless and a useless undertaking. In thousands of different forms of declarations in the books, sufficient if true to maintain the action, this sufficient consideration is expressed and appears. This consideration is better understood by attending to a few principles, than by running through all the numerous cases; this has been done in a former chapter. Most of the considerations in assumpsit appear in these forms of expression, and the same also shew the right of action. 20. First, in consideration the plt. sold to the deft. at his request the goods described in the declaration, or in a schedule annexed, he promised to pay the plt. as much money, as they were reasonably worth at the time of the sale and delivery. 21. Second, in consideration the plt. laboured or permitted his minor son, apprentice, servant, or hired man to labour for the deft., in some work or business described in the declaration or schedule annexed, he promised to pay the plt. as much money as he deserved to have therefor 22. Third, in consideration the plt. permitted the deft., at his request, to use and enjoy, for such a time, such the |