plt's. property described in the declaration or schedule annexed, he the deft. promised the plt. to pay him as much Art. 1. · money as he deserved to have therefor. In such case the promise is to pay on demand, where no time of payment is specially agreed upon. § 23. If the plt. let the deft. have at his request, any kind of property of use or value to either; or do for him any labour as a physician, attorney, &c.; or allow him to use or enjoy any of the plt's. property, as his house, store, wharf, vessel, &c.; an action lies for payment, either for the price agreed on, or for a reasonable sum. 24. There are, however, some cases in assumpsit besides those stated in former chapters, in which questions arise, if the plt. can maintain an action. These will be noticed in the following chapters, the grounds of a sufficient consideration having been examined. 332.-1 Com. - $25. If the heir promise the father, intending to cut down timber to raise his daughter's portion, to pay so much for her D. 197 portion, if he will not cut it, she may have assumpsit against 2 Lev. 211. the heir for the sum promised. In this case the consideration or motive influencing the son to promise is good, to save the timber on the estate coming to him, he is moved to promise to pay his sister a certain portion. The father is to be considered in two points of view. 1. As the owner of the estate, and as having a power and right to take off the timber to raise his daughter's portion. 2. As acting for his daughter and in her behalf, and taking a promise to pay her her portion, giving her a right to sue for it. 26. A case in which the law raises no promise for meritorious services done, as where A worked for a committee who had resolved," that any service to be rendered by him should be taken into consideration, and such remuneration made as should be deemed right." Held, A could have no action for such work, as the resolution imported the committee was to judge if any remuneration was due. 1 Maule & Sel. R. 290, 291. CHAPTER X. ACTION OF ASSUMPSIT. AGISTMENT. ART. 1. Agistment. The plt. brings this action against Imp. M. P. the deft. for agisting, feeding, keeping, and depasturing the 1 Bac. Abr. deft's. cattle. The action may be indebitatus assumpsit, or 243. quantum meruit. Сн. 10. Moore 543. -Imp. M. P. 307.-8 Co. 63, Caly's case.-Bul. N. P. 45. 1. If A take a horse to pasture and he be stolen, no action lies against him, unless he make a special promise to deliver him; for he undertakes to feed him in the fields, and not to keep him safely, as the hostler is obliged to do, in his stable. 2. And he who takes beasts to feed in his pasture, cannot retain till he is paid their keeping. He has no lien, unless it be so expressly provided for, and if lost for want of ordinary care, he must be liable to an action for them. As the law lays Cro. Car. 271, him under no particular obligation to preserve the creatures, in Chapman v. his pasture by the owner's consent, on the one hand, so it gives him no lien or special advantage to retain for his pay, on the 128, 129, 131, other. And as to bailment he is on the ground of a common bailee. Allen.-Imp. 308.-Jones 2 Esp. 346. Imp. M. P. 307. Chapman v. -Jones 280. 3. In agistment, various kind of creatures, as horses, sheep, horned cattle &c. for various periods of time may be taken in, by the season, the month, the week, or the day, by the head, by the pair, by the dozen, score, &c. It is called agistment, because the cattle are suffered to be agiser, that is, to be levant and couchant on the land-and large tracts of land are often profitably employed in this way. § 4. Whenever one takes in creatures to pasture, he takes them on an implied promise to return them on demand to the owner. 5. It is a good declaration in this action, to allege, the deft. is indebted to the plt. in £10 for the feeding and agistment of beasts; for though it is not sufficient to allege generally, he was indebted, for this may be for rent upon leases, or debts upon specialties, yet this is certain enough, for the declaration states it to be for pasturing, a matter for which assumpsit will lie. § 6. Agistment in England, especially in ancient times, was much connected with the forest laws, as a very considerable portion of it was in the forests; but there has been nothing of this in the United States. Anciently there was an officer, called the agistor, whose business it was to present trespasses by beasts in the forest, and if he presented any that did not belong to his office, he was fined. 7. When, many years since, a chapter was allotted to this subject of agistment, or pasturing various kinds of creatures, there were existing many statutes in the several States on it, and it was expected that in the course of a number of years many decisions would be made on them; but it has so happened that no American decisions deserving any notice, have been found on the subject. The numerous English cases growing out of the tithe system are of no use in the United States. ART. 2. Agistment on Mass. statutes. Though there never has been in the United States any kind of agistment, or feeding of cattle in forests under divers regulations, as there has been in England, yet in some of the states, and especially in Massachusetts, there long has been a species of agistment, or feeding of horses, sheep, and horned cattle, in the roads and highways, regulated by statute law, and also on commons. CH. 10. Art. 2. 2. In the Colony of Massachusetts there was a law to prevent sheep feeding on the commons without a shepherd, for a part of the year. In 1693, this law was revised, and it was Province Act, A. D. enacted, that for every sheep in every town going on the com- 1693. mons without a shepherd from May 1 to Nov. 1, yearly, the owner or keeper should pay a fine of 3d. This law was revised Feb. 13, 1789. 3. By an act passed in the Province of Massachusetts Province Act, A. D. Bay, in 1698, it was provided, that neat cattle, horses, or 1698. sheep, going upon the commons, not allowed to feed there by the major part of the proprietors empowered to permit the same, might be impounded in the manner pointed out in the act. 4. By this act all horse kind of a year old going at large Mass. Act, on the common or ways in any town, are to be sufficiently Feb. 3, 1789. fettered, on penalty of fifty cents, from April 15 to Nov. 1; but power is given to towns at their annual meetings in March or April, by vote to grant liberty for horses to go at large with- Mass. Act, out fetters, between the said fifteenth day of April and the first day of Nov. yearly. This act, by another passed June 22, 1793, is extended to asses and mules. June 22, 1789. 5. By this act, field drivers are empowered to take up Mass. Act and impound any swine unyoked or unringed, horses unfet- of Feb. 14, tered, sheep not under the care of a shepherd, or going at large on the common or highways, between the fifteenth day of April and the first day of November, yearly, and to proceed with them in the manner pointed out in the act. Mass. Act, Feb. 26, 6. By this act each town may direct, that neat cattle, horses, or horse kind, mules, or asses, shall not go at large, on 1800. penalty of twenty-five cents for each beast, at any one time, to be recovered by impounding, by any inhabitant of the town. 1804. 7. By this act, towns are empowered to direct, that any Mass. Act, particular description of neat cattle, or other commonable Nov. 21, beasts, shall not go at large without a keeper; and the owners of beasts thus going at large against law, and doing damage, are made liable to make satisfaction therefor, in lands of others, "whether such improved lands be inclosed with a sufficient fence or not." Laws in substance like these are, or probably will be, found necessary in each State Сн. 11. Pl. Com. 17. Cooper's Pl. 182.4 Wheaton 225, 230. 3 T. R. 524, Curry v. Edensor. See Coke v. Oxley, Ch. 22, a. 22. Hob. 41, 42, 1 Com. D. See Ch. 16, a. 2. Salk. 113. CHAPTER XI. ASSUMPSIT. AGREEMENT WRITTEN, HOW REQUIRED OR NOT. ART. 1. Agreements what. This is aggregatio mentium, when two or more minds are united in a thing done, or to be done; and it ought to be so certain and complete, that each party may have an action upon it; and there must be quid pro quo. 1. An agreement ceases by being put in writing under seal; but not when put in writing for a memorandum. 2. A promise accepted becomes an agreement, for the minds of the parties unite in the thing-but essential to agree the price and the very terms. 3. An agreement shall always be expounded according to the intention of the parties, and have a fair construction. 4. Hence, a broker, when he bought goods for his principal, agreed for half per cent. to indemnify him from any loss on the resale; the principal had a fair opportunity to sell to advantage, but neglected, and afterwards was obliged to sell at a loss; it was held, that the broker's promise was discharged, and no action lay against him. $5. Agreement when void. If one agree for goods at such a price, the bargain is void, and no action lies, if the price be not immediately paid, or a future day of payment agreed on. But if the seller deliver the goods without either, the agreement is good. So without either, if the vendee afterwards pay, for this payment has relation to the first agreement. ART. 2. Earnest. So if the price be agreed, and the vendee pay part, as earnest, the contract is perfected, and an action lies on it; and the same if a pay-day be fixed upon. § 1. The effect of paying earnest. Earnest only binds the 6 Mod. 162. bargain, and gives the party a right to demand; as where the -Langfort v. deft. bought four tubs of tea of the plt., paid for one and took Tiler, 1 Esp. 15-2 Bl. it away; and left £50 in earnest for the others there: Holt, Com. Chris. C. J. ruled, that though earnest was paid, the money must be paid on taking away the three tubs, as no other time of payment was appointed. Notes 57, 58. -12 Mod. 345. Ch. 80, a. 45. -5 T. R. 409, Bach v. Owen. 2. That earnest only bound the bargain, and gave the vendee a right to demand, but then a demand without payment was void. That after earnest paid, the vendor cannot sell the 1 Bro. C. C. goods to another, without a default in the vendee. If the vendee do not pay and take away the goods, the vendor ought to request him. Then if he do not pay and take them in a reasonable time, the agreement is dissolved, and the vendor is at 417. CH. 11 Art. 2. 242. 1 Saund. 319, 2 H. Bl. 316, liberty to sell them to another. [The United States courts will not enforce an agreement made in fraud of the laws of the United States.] Whatever sum is paid as earnest, is to be deemed part of the price when the goods come to be paid for. 3 Cranch. Earnest, therefore, is no more than an advance or payment, or a part of the price. 5 Co. 177.-2 Vern. 606. Pordage v. § 3. The deft. agreed to sell goods to the plt., who paid a Cole.certain sum as earnest, and the goods were packed in the plt's. 1 Esp. 15. clothes, and left in the deft's. store till the plt. should send for Goodall v. them; but the deft., at the same time, declared they should Skelton.not be taken away till he was paid. The court held, this was no delivery to the plt., and vested no property in the goods in him; he had no right of action for them till paid for. If the vendee do not perform the bargain, the deposit is forfeited. 1 Esp. 15. 4. If A agree to purchase plate of B, and he, to get A's 7 T. R. 64., arms engraved on it, and to pay for the engraving; the court Owenson . held, that a delivery to the engraver for this purpose was no 2 Com. D. delivery to A, but that B might stop the plate in transitu, the 135. price not being paid by A. See 2 Phil. Evid. 118. Morse. Back v. Owen. § 5. If A and B agree to exchange horses, and B pay A 5T. R. 409. $1 to bind the bargain, A may sue B for not delivering the horse, and need not allege his offer to deliver his own to B, for the payment of earnest vests the property of A's horse in B; but A must allege, (or it is bad on special demurrer) he specially demanded the horse of B, and that he did not deliver him. Contra, 1 Vern. 482. Ch. R. 16. Voll v. Smith, § 6. Earnest, or part payment for land purchased, according to the better opinion, does not amount to a part performance, so as to take the case out of the 11th section of the statute of frauds, in law or equity; for the legislature has said in the 17th section, that such earnest shall, as to goods, have the effect, but not in the 11th section as to lands. The cases are many, and sometimes contradictory, and it will be observ- 3 ed, that all the cases cited in this article respect goods. In sup- tins. port of the above position, are New. on Con. 187 to 191; Ch. R. 128, Symonds v. Cornelius; 7 Vesey 341; and Seagood v. Meale, a. 8; 4 Vesey 720, Main v. Milbourne, and Sugden's Vendors &c. 88, 89. Atk. 1, La con v. Mer Owen r. Da $7. Change of property without earnest paid, &c. A, know- 2 Ch. Ca. 135, ing B was insolvent, sold him goods for a promissory note at vies. sixty days; the goods were left in A's possession, and no earnest 2 Caines' R. paid; A shewed them as the goods of B; held, B's sale was 38, Hunn & good against one made by A, though B became insolvent, and the note remained unpaid. al. v. Bowne. $8. An agreement void ab initio, cannot be subsequently 3 Caines' R. affirmed by a new promise. As where an insolvent gave his 213, Payne 2. note, date blank, to his creditor, to induce him to sign a peti Eden. |