would be insisted on by the defts. at the trial. A material circumstance besides, how could the plt's. bill of costs, in Templer's case, be a measure of damages the client was entitled to, by reason of his attorney's negligence? CH. 9. Art. 22. 282, Taft v. 13. The plt. contracted to build a bridge for a price 14 Mass. R. agreed, and did it so badly, that after it served the purpose Montague. intended a short time, it, from its bad construction, was carried away by a flood. Held, he could not recover on his contract, because he had not fulfilled it; nor on a quantum meruit, because the defts. had received no benefit from his labours. In Taft's case, it was said by the court, that Everett v. Gray had been questioned; if not law, it seems that cases of these descriptions may rest very well, in general, on the principles stated in Basten v. Butter. counts. See & E. 105, Cases, Ch. 62, a. 43. ART. 22. How express promises exclude implied ones or not, Where bills, notes, checks, or the plt. may recover on his common counts or not. 1.The &c. are evicases under this head are very numerous, so many of them dence on the only will be here noticed, as may be proper to illustrate the common general principles on which these kinds of cases are decided. Ch. 20, a. 20, The leading principle has been above stated, laid down by 21-2 D. Buller, who observed, the law raises an implied promise, Toussaint v. "because there is no security given by the party, but if the Martinent. party choose to take security, there is no occasion for the law Where no privity is necesto raise a promise; promises in law only exist where there sary. See are no express stipulations between the parties." This rule Ch. 9, a. 2. is without exception, that is, while the express or special promise remains in force, and the promisee can recover on it, he must abide by it. But often the express promise fails him, as never being valid, or put an end to, or has been so treated by the promisor, that the promise may view it as at an end. The true question then is, in every such case, does the special or express contract remain in force. As where A agreed with B, 239, Young v. under seal to do certain work, and did part of it, and B pre- Preston, in vented A from finishing it according to the sealed contract. Held, A could not recover on his common count a quantum meruit, for the part of the work actually done, but that he must sue B on the sealed instrument. Judgment below reversed; Preston, the plt. below cited, Towers v. Barrett, 1 D. &. E. 133.-Giles v. Edwards, 7 D. & E. 181.--1 Powell on Contracts 417. But the Supreme Court of the United States held the contractee had a clear right of action on his special contract, and that " whenever a man may have an action on a sealed instrument, he is bound to resort to it," and as it was in part performed, it could not be viewed as rescinded, for reasons which will appear. See 1 Dallas 428.-1 Caines' R. 47, 48. 4 Cranch R. error. Ch. 4, s. 15: CH. 9. Art. 22. -3 Johns. R. 606, 511, Howes v. Baker. 4 Mass. R. 3 East. 72, v. Buttivant. 183. 2 Mass. R. The covenantee cannot have an action for money had and received, where a covenant respecting lands is executed by a deed given, though it appear he has paid too much, as for more acres than were conveyed to him, was none but parol evidence. 2. Held, "it is a general rule, when the parties have made an express contract, the law will not imply a contract.' How far this rule will apply when the express contract is of such a nature, that no remedy will lie for the breach of it, when at the same time there is a sufficient consideration to support an implied contract, may be a question." In this case held the parties were bound by their express contract, and then the law will not raise an implied contract. 7 D. & E. 584. It is stated by Sugden, "that a contract cannot arise by implication of law under circumstances, the occurrence of which neither of the parties ever had in their contemplation. 3. But where the daughter, when she came of age, 415, Whipple annulled her special contract for board with her mother; held, v. Dow & ux. she could maintain her action for it on an implied promise, considered by the court as never having been suspended. 7 Mass. R. v. Sullivan. § 4. In this case the same general principle was adopted, it 107, Whiting was assumpsit for keeping the deft's. horse, and decided, that the law will not imply an assumpsit, where there is an express promise. 2. Nor will the law imply a promise against the express declarations of the party, made at the time of the supposed implied promise, "for such declaration is repugnant to any implication of a promise." The deft. returned the horse to the plt. he had purchased of him conditionally, and if absolutely, yet the deft's. expressly declaring by his agent, he would have no more to do with the horse, when he returned him to the plt., fully negatived any implied promise to pay for his keeping. 4 Bos. & P. 351, Cooke The deft. re Assumpsit on an agreement to deliver soil or breeze, also a count for money had and received. Evidence, the deft. had v. Manstone. agreed to deliver soil only, the plt. paid £2 5s. as earnest, lied on Tow- and the deft. refused to deliver the soil; held, the plt. could ers v. Barrett, not recover damages for the non-delivery on the first count, Weston v. for the variance between the contract laid and the one Downes, Giles v. Ed- proved, nor the £2 5s., money had and received on the wards. Mass. S. J. second count, because the agreement was still in force, and the plt. had a remedy on it-it was not rescinded by any act of the parties, but only broken by the deft. The plt. relied on Harris v. Oke, Bul. N. P. 139.-Payne v. Bacomb, Dougl. 651, cited Hunt v. Silk, 5 East. 449. 5. The general principle was adhered to in this case, and Court, June because the deft. proved a special contract for the plt. to labour by the day at a fixed price, the court held he could not Term 1783, Peirce r. Fellows. recover on any implied promise; the special contract remaining in force, if not performed. CH. 9. in error v. 1809. 6. Held, a contract cannot be rescinded by one party for the default of the other, unless both can be put in statu quo 5 East 449, as before the contract, and this could not be after the contractee Hunt v. Silk. had had an immediate possession of the house, the contractor stipulated to lease, and possession of it under the agreement only, Giles v. Edwards, cited. The leading principle is in this case. 7. Assumpsit to recover $20 69 for the labour of the 5 Mass. R. plt's. son. 1. Count was on a special agreement. 2. General 391, Keyes, indebitatus assumpsit. 3. Quantum meruit. The evidence Stone, A. D. proved an express contract to work seven months for $53, and in proportion if either party dislike. Held, the evidence. did not support the first count; as it did not prove the special contract declared on, but also held the plt. might recover on his general count, and observed, this was the new practice, and not the former, and that a recovery on the general count would be a bar to an action on the special agreement. This decision may be questioned, for here a special agreement existed, and it seems remained in force, and was proved, though not the one alleged in the declaration, and when the court said, that a recovery on this general count would be a bar to an action. on the special agreement, it implied the court thought it existed, and not put an end to; nor do the cases cited justify the decision, one cited, Harris v. Oke, Bul. N. P. 139, 140; for Harris v. in this case, though the plt. laid a special agreement, he proved none, nor did it appear one ever existed, and then no doubt the plt. might prove his common count, the implied promise, as this cannot be excluded by a special contract when there is no evidence one ever existed. As to laying a special contract it is but allegation, and an attempt to prove one is nothing, if none be proved; it is the one proved to have been made and not rescinded, which excludes the contract implied by law. Another case cited is Weaver v. Burroughs. This Bul. N. P. only proves, that if a special agreement appears, though not 139, Weaver such a one as is laid in the plt's. declaration, he cannot re- Stra. 648, v. Burroughs. cover on his general count, in its nature a quantum meruit. A Payne v. Bathird case cited is found in Dougl. 651. This is exactly to my point; in this case the plt. stated a special agreement and failed to prove it; nor does it appear he proved, or that it appeared any special agreement ever existed. Here the court did right to permit the plt. to prove his general count, as it did not appear to be excluded by any express contract. Kech's case A. D. 1744, Bul. N. P. 139. The plt. declared on a special written agreement, by which 36, 38, Linthe plt. was to deliver certain logs, &c. to the deft., and by ningdale v. Oke. comb. 10 Johns. R. Livingston. Сн. 9. Art. 22 Tuttle v. 7 Johns. R. which he promised to pay a certain sum. The plt. averred he did perform &c., and that the deft. did not pay. 2. Counts on a parol agreement of the same import; and 3, the common counts for goods sold and delivered, money paid &c., plea non assumpsit with notice of set-off. At the trial the plt. waived the special agreement and went on the common count &c., the court held he might. Also held, if the plt's. evidence be sufficient to prove his general count, supposing he had not declared on a special agreement, he may recover on that count, no doubt, if he had a right to waive the special agreement and not to attempt to prove it. Likewise held, the deft. might give it in evidence to lessen the damages, it was not then a nullity. Also held, if he offered to defeat the plt's. action by showing he failed to perform, it is immaterial, and may be rejected. The plt. failed in part to perform, but he delivered the logs, though too late, to the deft., which he used and so accepted. This case need not be disputed, because the court held the plt. proved, "that the special agreement was no longer subsisting and in force, but had been put an end to by the refusal of the deft. to permit the logs to be laid, and by appropriating them to his own use;" this gave the plt. a right so to waive. The court cited Cooke v. Munstone, also Bul. N. P. 139 above, and Tuttle v. Mayo, 7 Johns. R. 132. The court further observed on the case in Buller, that it admitted the rule now is, that if there be a special agreement, and the work be done, but not in pursuance of it, the plt. may recover on a quantum meruit. The plt. may recover on a quantum meruit, no doubt, if the deft. accept the work so done; because the parties then make a new case, one not within the agreement, both waive it; and the plt. must thus recover on his new case, for the work done not as agreed, but yet accepted by the deft. But if the special agreement in Liningdale v. Livingston was "at an end" and no longer subsisting in force, on what principle was the deft. allowed to use it to lessen the damages? See s. 14. The court relied on Sir James Mansfield's rule in Cooke v. 132, Tuttle v. Munstone. This rule is thus, "where a party declares on a Mayo. special agreement, seeking to recover thereon, but fails altogether, he may recover on a general count, if the case be such, that supposing there had been no special contract, he might still have recovered." The court in Tuttle v. Mayo said, the plt. failed wholly to make out a special agreement," that is, failed to prove any such existed. This case need not be disputed, nor Cooke v. Munstone, wherein it was held the plt. could not recover on his general count, because the special agreement was still in force; nor on his special agreement 66 because his evidence did not prove it to be as he had laid it in his declaration : certainly good law in both points. 8 СH. 9. D. & E. 379, Rex v. Ch. 93, a. 2, Laindon. 8. So in this case (stated more at large in another place) the court held, that if parties make a contract with one intent, as to constitute the relation of master and apprentice &c. and the same be defective to that purpose, it never can be applied to another intent, as to constitute the relation of hirer 3, 4, 5. and hired for a year &c.; for to give it the other intent or construction, is to make it mean what the parties never intended. So when the parties deliberately make a special contract by which to measure their right and payments, he that claims in the case must abide by it unless rescinded, or a new contract arises on their mutual conduct. man v. Gore & Grafton; as to this for gery were ci ted 4 D. & E. 30, 332; Ch. 178.-1 H. Bl. 569. case K. § 9. Innocent endorsee of a note may recover against the 15 Mass. R. maker on the common count, the endorsement being forged. 331, BoardAs where Gore and Grafton were partners in trade, and Grafton made a note to one Cushing as payee, without his knowledge, or that of Gore; then Grafton forged Cushing's endorsement on the note, and caused it to be sold in the market, by an innocent broker, and the plt. purchased it at one per 213, a. 2, s. cent. a month discount. He recovered the amount of the ma- 4-3 D. & E. kers, the defts. on the common count for money had and received. As Cushing had no knowledge of the note, there was Style 346.no assent on his part, and of course there was no contract be- See Rol. Abr. Trespass 30.tween him and them; he paid no consideration, therefore the Bac. Abr. Acnote was a nullity, as between the original parties, and as be- tions on the tween the makers and the plt., as there was only a forged endorsement, the plt. paid or advaneed his money to them, not on any special valid contract, as there was none, and for no consideration, but they obtained it by the fraud and forgery of one of them. The defence was, 1. That here was a felony that merged the note, through which no right could be claimed. But the C. Justice in delivering the opinion of the court said, here was no forfeiture of estate for such a felony, and the reasons of the common law did not apply, and further the plt. did not claim through the note. 2. Also an objection, here was a special contract, but clearly there was none of any validity, on which the plt. could recover, then his case came within the rules before stated in this article. Dougl. 637, Archer v. Bank of England; Bul. N. P. 130; 4 D. & E. 485, Irving v. Wilson, & al.; 7 East 210, Swan & al. v. Steal As to paying & al.; Cowp. 814, Wellet v. Chamber; Dougl. 228; 5 D. on a forged & E. 601; 1 H. Bl. 313, Collis v. Emett & al.; 3 Burr. 1516, Grant v. Vaughan; 3 D. & E. 174, Tatlock v. Harris ; 12 Mass. 172; 6 Johns, 11. 10. A similar case, the Manufacturers and Mechanics Bank v. Gore and Grafton. Sundry cases in which the plt. bill &c. 15 Mass. R. 75.-M. & M. Bank v. Gore, & al. |