gerald v. Allen, 128 Mass., 232, 234; Bailey v. Marden, 193 Mass., 277, 279.1

If, therefore, the plaintiff's claim was established in fact, that after he had hauled a part of the wood it became reasonably "impossible for him to perform the rest of the contract on his part because of an unjustifiable neglect and refusal by the defendant to perform his part of the contract, then the plaintiff was justified in regarding the special contract as at an end, and was entitled to recover of the defendant in indebitatus assumpsit upon a quantum meruit the value of the work he had done of which the defendant had received the actual benefit. And that is the action the plaintiff brought. It is not an action for damages for a breach of the special contract, but an action for the value of the plaintiff's services performed for the defendant under such circumstances as entitle him to recover therefor upon a quantum meruit.

Those services were performed under the special contract, but the plaintiff claimed that contract was at an end because of the defendant's default. Therefore, in proving the cause of action as laid in indebitatus assumpsit the special contract necessarily became competent and material to be put in evidence, and its terms referred to, in order that it might be determined by the jury if it was at an end without the plaintiff's fault but on account of the unjustifiable default of the defendant to perform his part of it. And it was offered and admitted for that purpose only, and the jury were so instructed. We think it may also have been material upon the question of the real value to the defendant of the plaintiff's services.

In the opinion of the court the rulings and instructions complained of were in accordance with well settled principles, and unexceptionable.

2. THE MOTION.

Upon the vital issue of fact in the case, whether the plaintiff was prevented from performing his part of the contract on account of an unjustifiable neglect and refusal of the defendant to perform his part, the evidence was conflicting. That issue was clearly presented to the jury. The weight and effect of the evidence was for them to pass upon, and it does not appear to the court that their finding was manifestly unwarranted by the evidence.

Exceptions and motion overruled.2

1 Suppose the plaintiff had broken his contract and so could not hold the defendant liable thereon. Could he recover for the value of the benefit conferred on the defendant by furnishing labor and materials? See 5 Williston, Contracts (rev. ed. 1936) §§ 1473-1477.

2 See Restatement, Contracts (1932) § 350: "The remedy of restitution in money is not available to one who has fully performed his part of a contract, if the only part of the agreed exchange for such performance that has not been rendered by the defendant is a sum of money constituting a liquidated debt; but

BONNEL v. FOUKE.

COURT OF UPPER BENCH.1 1657.

2 Siderfin 4.2

THE plaintiff being one of the colemeeters of London, for which he was to pay £80. per annum, the special matter was found to be that by divers charters the Kings of England had granted and confirmed to the Mayor and Aldermen of London the measuring of cloths as well woolen, as linen, silks, etc., and the weighing and measuring of fruit, fish, coals, etc., both in the port of London and on the river Thames from Stanes-bridge to London-bridge and from thence to Medway near the sea, as also upon the river Medway, of all such goods landed upon the banks within the said space before limited; and it was found that in ancient times but four colemeeters, and afterwards six were appointed, and afterwards eight. And in the third year of King James it was enacted by the Common Council of London (which has as much power within the walls of London as an act of Parliament without) that there should be ten colemeeters, eight of whom should pay their rent to the Lord Mayor for the time being, for the maintenance of his honorable house, and the other two to the Chamberlain of London; and the plaintiff was one of which two who should pay rent to the Chamberlain of London, as was plainly proven. And about the year 1652 (as I remember) when the defendant was Mayor, he de

full performance does not make restitution unavailable if any part of the consideration due from the defendant in return is something other than a liquidated debt."

Consider what would be the proper form or forms of action in the following situations:

A. Contract not under seal.

1. Plaintiff promises to transfer title to a horse in exchange for defendant's promise to transfer title to a cow.

2. Plaintiff promises to transfer title to a horse in exchange for defendant's promise to pay $100.

3. Plaintiff promises to pay $100 in exchange for defendant's promise to transfer title to a cow.

Consider in each situation three possibilities: (a) by the terms of the contract title to the chattel or chattels involved is not to pass until delivery, and plaintiff has not performed but is ready and willing to do so; (b) the same except that plaintiff has performed; (c) by the terms of the contract title to the chattel or chattels involved is to pass upon the making of the contract. As to when title passes in a sale of goods, see 1 Williston, Sales (2d ed. 1924) §§ 260-264.

B. Contract under seal.

Consider the same situations assuming the same possibilities, except that the contract in each case is under seal.

1 This was the title given during the Commonwealth to what had been the Court of King's Bench.

2 This translation from the Norman French of the original report follows that in Thurston, Cases on Quasi Contract (1916) 13.

manded of the plaintiff said rent, which he paid quarterly and holds several receipts to this effect: "Received of J. B. one of the colemeeters of the city of London the sum of £20. for his rent, by me, J. F., Lord Mayor, etc." And then the rent was demanded of the said plaintiff by the Chamberlain of the city and he paid to the Chamberlain the said rent and therefore he brought assumpsit, namely indebitatus assumpsit, against the defendant, Foulke.

And ADJUDGED that action well lies.

As if one comes to me and says, "Pay me my rent, I am your landlord" and I reply, "Give me your receipt and you shall have it." And so I pay him, and then another who has a right (to the rent) comes and demands it and I pay him, I can have indebitatus assumpsit against him who gave me the first receipt.

And if I pay monies in satisfaction of a duty and he to whom it is paid has not title to receive it, and so the duty is not satisfied, he to whom it is paid is indebted to me, and therefore I may maintain action against him just as well as when one who has no title demands rent.1 . . .2

LAMINE v. DORRELL.

COURT OF QUEEN'S BENCH. 1705.

2 Lord Raymond 1216.

IN an indebitatus assumpsit for money received by the defendant to the use of the plaintiff as administrator of J. S. on non assumpsit pleaded, upon evidence the case appeared to be, that J. S. died intestate possessed of certain Irish debentures; and the defendant pretending to a right to be administrator, got administration granted to him, and by that means got these debentures into his hands, and disposed of them: then the defendant's administration was repealed, and administration granted to the plaintiff, and he brought this action against the defendant for the money he sold the debentures for. And it being objected upon the evidence, that this action would not lie, because the defendant sold the debentures as one that claimed a title and interest in them, and therefore could not be said to receive the money for the use of the plaintiff, which indeed he received to his own use; but the plaintiff ought to have brought trover or detinue for the debentures: the point was saved to the defendant, and now the court was moved, and the same objection made.

POWELL justice. It is clear the plaintiff might have maintained detinue or trover for the debentures; but when the act that is done

1 Part of the opinion dealing with another point is omitted.

2 This is perhaps the earliest case allowing general assumpsit for the recovery of money paid by mistake. This matter is more fully considered in the

course on Restitution.

is in its nature tortious, it is hard to turn that into a contract, and against the reason of assumpsits. But the plaintiff may dispense with the wrong, and suppose the sale made by his consent, and bring an action for the money they were sold for, as money received to his use. It has been carried thus far already. Howard and Wood's case, 2 Lev. 245. Sir T. Jones 126. is as far; there the title of the office was tried in an action for the profits.

1

HOLT chief justice 1. . . If two men reckon together, and one overpays the other, the proper remedy in that case is a special action. for the money overpaid, or an account; and yet in that case you constantly bring an indebitatus assumpsit for money had and received to the plaintiff's use. Suppose a person pretends to be guardian in socage, and enters into the land of the infant, and takes the profits, though he is not rightful guardian, yet an action of account will lie against him. So the defendant in this case pretending to receive the money the debentures were sold for in the right of the intestate, why should he not be answerable for it to the intestate's administrator? ...

Afterwards, the last day of the term, upon motion to the court, they gave judgment for the plaintiff. And HOLT said, that he could not see how it differed from an indebitatus assumpsit for the profits of an office by a rightful officer against a wrongful, as money had and received by the wrongful officer to the use of the rightful.2

SECTION 6
EJECTMENT

FIRST REPORT OF HER MAJESTY'S COMMISSIONERS FOR INQUIRING INTO THE PROCESS, PRACTICE, AND SYSTEM OF PLEADING IN THE SUPERIOR COURTS OF COMMON LAW (1851) 54-56.

WE proceed to direct attention to the action of ejectment, which, owing to its peculiar and somewhat anomalous character, we have reserved for separate consideration.

1 A part of the opinion of Holt, C. J., is omitted.

2 See also Moses v. Macferlan, 2 Burr. 1005 (K. B. 1760). As to the place of the action of account in developing the doctrine of relief against unjust enrichment, see Belsheim, "The Old Action of Account," 45 Harv. L. Rev. 466 (1932). As to this action see also 3 Street, Foundations of Legal Liability (1906) 99–113. It was superseded by the bill in equity for an account. But as late as 1770 an action of account was brought in the Court of Common Pleas after a bill for an account had been "fruitlessly depending" in the Court of Chancery for 12 years. See Godfrey v. Saunders, 3 Wils. 94 (C. P. 1770) (giving details of the proceedings in a common-law action of account).

On waiver of tort, see Restatement, Restitution (1937) 522–525; Corbin, "Waiver of Tort," 19 Yale L. J. 221 (1910). The matter is more fully considered in the course on Restitution.

That is the action by which a person having a right of entry into land recovers its possession.

The following is a concise statement of the mode in which the proceedings are at present conducted in ordinary cases.

They are commenced by the delivery to the person in possession of the property to be recovered of a written statement purporting to be a declaration in an action of trespass and ejectment, alleged to have been previously commenced in one of the superior Courts at the suit of a fictitious person, generally called John Doe, (and styled "the nominal plaintiff,") against another fictitious person, generally called Richard Roe (styled "the casual ejector"). It states that the person in whom the title really is, (styled "the lessor of the plaintiff,") on a day named made a lease for a certain number of years to the nominal plaintiff John Doe of the property in question, which is described in terms so vague as to give no clue to its identity. John Doe is then stated to have entered and remained in possession until the imaginary defendant Richard Roe ousted or ejected him, and it is then alleged that John Doe has sustained damage by such ejectment to a certain amount, for which he brings his action. At the foot of that statement is a letter from Richard Roe to the person in possession, informing him that he, Richard Roe, is sued as a casual ejector only, and advising the actual possessor to appear in Court and procure himself to be made defendant in the stead of Richard Roe, or that he will be turned out of possession.

The above statement must, as a general rule, be served upon the person in actual possession, either personally or in such a way as to satisfy the Court that it has come to his possession or knowledge before the first day of the term in which proceedings are to be taken.

If the person in possession does not appear within the time. allowed by the practice of the Court, viz. the first four days of the following term when the property is in London or Middlesex, or the entire term if the property is in any other county, judgment is pronounced against Richard Roe that John Doe recover his term, and upon that judgment execution is issued,1 and the possession delivered to the lessor of the plaintiff.

The person served with the declaration in ejectment, or, by leave of the Court, his landlord, may, however, appear within the time above mentioned, and cause himself to be substituted as defendant instead of Richard Roe, upon entering into a rule of Court, (called "the consent rule,") the effect of which is, that the substituted defendant pleads the general issue not guilty, and agrees upon the trial of the cause to admit all the fictitious statements in the declaration to be true, and also that he was in possession at the time of the

1 For the form of execution in ejectment, see Ch. X, infra.