meruit. in the absence of any express agreement respecting the price, is a promise to pay so much money as the executed consideration was worth, quantum meruit or quantum valebat, according to the explanation contained in the following pasQuantum sage from Blackstone's Commentaries (a):-" If I employ a person to transact any business for me, or perform any work, the law implies that I undertook or assumed to pay him so much as his labour deserved. And if I neglect to make him amends, he has his remedy for this injury by bringing his action on the case upon this implied assumpsit.—But this valuation of his trouble is submitted to the determination of a jury, who will assess such a sum in damages as they think he really merited. This is called assumpsit on a quantum meruit. Quantum valebat. "There is also an implied assumpsit on a quantum valebat, which is very similar to the former, being only where one takes up goods or wares of a tradesman without expressly. agreeing for the price. There the law concludes that both parties did intentionally agree that the real value of the goods shall be paid; and an action on the case may be brought accordingly, if the vendee refuses to pay that value." CHAP. I. SECT. I. § 2. CONTRACTS IMPLIED IN Law. Contracts law. Simple contracts arising independently of agreement, or implied in contracts implied in law include those transactions affecting the two parties, other than agreement between them, upon which the law operates by imposing a contract, that is, a liability on the one side and correlative right on the other. The transactions between two parties, other than agreement, which give rise to contracts, may be described generally as importing that some undue pecuniary inequality exists in the one party relatively to the other which justice (a) 3 Bl. Com. 162, 163; and see 2 Wms. Saund. 122, 122a. and equity require should be compensated, and upon which the law operates by creating a debt to the amount of the required compensation (a). . law. In transactions of this kind the law not only imposes a Promises debt on the one party and creates a right in the other, but implied in further implies a promise to pay the debt, by means of which implied promise the contracts thus created are assimilated in form to the contracts founded on agreement and containing a real promise, and are brought within the same rules of law and are protected by the same form of action, namely, assumpsit (b). It is necessary to distinguish the contracts implied in law from the implied contracts described above as founded on real agreements and promises. In the former case the promise in point of fact is a pure fiction which has no existence in reality. In the latter case the promise, though not expressed in words, is inferred as an actual fact from the acts or circumstances of the party on whom it is charged (c). Before the Common Law Procedure Act, 1852, the promise implied in law, enabling the plaintiff to sue in the form of an action on the promise called an action of assumpsit, was of great practical importance. Different forms of action could not then be joined in the same declaration; an action of debt could not be joined with an action of assumpsit; but by means of the promise implied in law to pay the debt the plaintiff might sue for his debt in an action of assumpsit, in which action he might join a claim upon any other simple contract. The procedure under the two forms of action of debt or assumpsit was also different, particularly in respect of the form of the judgment, and the plaintiff by means of the promise implied in law was able to choose the form of action which was most convenient for his particular purpose. (a) See Moses v. Macferlan, 2 Burr. 1005, 1008, 1012; Smith v. Jones, 11 L. J. C. P. 99, 100; 6 Jur. 283, 284; per Maule, J., Lewis v. Campbell, 8 C. B. 541, 545. Contracts implied in law are said to correspond with the class of obligations in the Roman law described as arising quasi ex contractu. See Austin's Jur., vol. iii. p. 134, 221; Maine's Ancient Law, p. 344; As to the transactions in- (b) Moses v. Macferlan, supra; 162. (c) See ante, p. 11. Money paid. By the amendments of the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), all the practical importance attending the different forms of action has been removed: s. 3 renders it unnecessary to mention any form of action in the writ of summons; s. 41 enables causes of action of whatever kind by and against the same parties to be joined in the same suit; s. 49 prohibits all immaterial and fictitious statements in pleadings, such as "the statement of promises which need not be proved;" ss. 93, 94, 95 extend the same conveniences as to final judgment and the assessment of damages to all causes of action to which they can be applied. The combined effect of these enactments is that the substance of the cause of action in all cases is considered irrespectively of the form in which the action is framed; and the doctrine of implied promises has no longer any practical application. Contracts implied in law may be classed under the following general descriptions : Contracts arising from money paid by the plaintiff for the use of the defendant. Contracts arising from money received by the defendant for the use of the plaintiff. Contracts arising from previously existing debts:-as upon executed considerations,-upon accounts stated,—upon foreign judgments and other debts created by foreign law. The payment of money by the plaintiff for the use of the defendant, under certain circumstances and upon certain occasions, creates a contract in law to repay the amount as a debt, independently of any agreement between the parties to that effect. Where there has been an express request made by the defendant to the plaintiff to pay the money for him, importing a promise on the part of the defendant to repay the amount to the plaintiff, and the money is paid in pursuance of the request, the transaction then involves an actual agreement and produces a contract in the form of a consideration executed upon request (a). Where no request in fact exists, (a) Ante, p. 25. nor any agreement in fact respecting the payment which gives rise to the contract, the law implies a fictitious request on the part of the defendant for the plaintiff to make the payment. By means of the request thus implied in law, the plaintiff is enabled in pleading to state his claim in the compendious form above mentioned of " money paid by the plaintiff for the defendant at his request," instead of stating in detail the circumstances of the payment of the money, which raise in law the obligation of repayment; and it is laid down as a general rule that "in every case in which there has been a payment of money by a plaintiff to a third party at the request of the defendant, express or implied, on a promise, express or implied, to repay the amount, this form of action is maintainable" (a). of liability This contract is created in law upon an implied request Compulwithout any request existing in fact, where the plaintiff ment in has been compelled by law to pay, or being compellable by discharge law has paid money which the defendant was ultimately of another. liable to pay, so that the latter obtains the benefit of the payment by the discharge of his liability; under such circumstances the defendant is held indebted to the plaintiff in the amount (b). Accordingly, an executor who was compelled to pay legacy duty, for which the legatee was ultimately liable, was held entitled to recover the amount from the legatee as money paid for his use (c). An auctioneer, who was compelled to pay the auction duty upon the sale of an estate, was held entitled to recover the amount from his employer as money paid for his use (d). Where a person has employed a broker to purchase shares for him, and neglected to provide for the payment of the price, in consequence of which the broker has been compelled according to the usage of the share market to pay to the seller the price, or the difference upon a re-sale, or the calls due (a) Brittain v. Lloyd, 14 M. & W. 762, 773; adopted in Westropp v. Solomon, 8 C. B. 345, 370; Lewis v. Campbell, 8 C. B. 541, 547. (b) Jefferys v. Gurr, 2 B. & Ad. 833; Grissell v. Robinson, 3 Bing. N. C. 10, 15; Spencer v. Parry, 3 A. & E. 331, 338; Pownal v. Ferrand, 6 B. & C. 439, 443, 445; 9 D. & R. Payment of debt by surety. upon them, as the case may be, the broker may recover the amount so paid from his employer as money paid for his use (a). The plaintiff employed an attorney to draw a lease granted by him to the defendant, and was compelled to pay the charges of the attorney upon his retainer; the defendant as lessee, being bound by custom to pay the expenses of the lease, was held liable to the plaintiff for the amount as money paid for his use (b). The plaintiff gave his acceptance to the defendant as security for a debt which he afterwards discharged under a composition with his creditors; being afterwards compelled to pay the amount of the bill to an indorsee, the plaintiff was held entitled to recover the amount from the defendant as money paid to his use (c). Where the master of a ship has raised money on bottomry bonds for the repair of the ship, hypothecating the cargo, which he is entitled by maritime law to do, and the owner of the goods has been compelled to pay money to the holder of the bonds in order to redeem his goods, the owner of the goods may recover the amount so paid from the shipowner, who was bound to deliver the goods on payment of freight only (d). By the French law the shipowner may free himself from all engagements of the master by the abandonment of the ship and freight, so that in the case of a French ship and cargo charged with bottomry bonds, the shipowner having discharged his liability by abandoning the ship and freight to the bondholder, was held not liable to the shipowner for the money paid by him to redeem his goods from the bonds (e). Where a surety has been compelled to pay the debt which he has guaranteed, the principal debtor is bound to repay him the amount (f). Thus, if the indorser of a bill is compelled to pay it by default of the acceptor, he may recover (a) Pollock v. Stables, 12 Q. B. 765; Bailey v. Wilkins, 7 C. B. 886; Smith v. Lindo, 5 C. B. N. S. 587. (b) Grissell v. Robinson, 3 Bing. N. C. 10. (c) Hawley v. Beverley, 6 M. & G. 221. (d) Duncan v. Benson, 1 Ex. 537 ; 3 Ex. 644. (e) Lloyd v. Guibert, 6 B. & S. 100; 33 L. J. Q. B. 241; 1 L. Rep. Q. B. 115. (f) Per Buller, J., Toussaint v. Martinnant, 2 T. R. 100, 105; per Lord Kenyon, C.J., Exall v. Partridge, 8 T. R. 308, 310; Alexander v. Vane, 1 M. & W. 511. |