ats.

GENERAL ISSUE, NON ASSUMPSIT.

Term, 8 Geo. 4.

In the K. B. (or C. P. or Exchequer.) John Nokes) And the said deft., by -, his attorney, comes and defends the wrong and injury, when, &c., and says, that he did not undertake or promise, in manner John Styles. and form as the said plt. hath above complained against him. And of this the said deft, puts himself upon the country.

For forms of other pleas in assumpsit, see the various titles of defences throughout the work.

Evidence for Plaintiff.

Under the GENERAL ISSUE.] Under this plea, the plt. must prove in substance all the material averments in the declaration: viz. the inducements, contract, or agreement itself; that it was made with the plt.; that it was made by deft.; that it was founded on a sufficient and legal motive, inducement, or consideration; that the subject-matter of it was to perform some legal act, or to omit to do something, the performance whereof is not enjoined by law; that the plaintiff has performed all conditions precedent, and, if necessary, given deft. notice of an act, or requested him to perform the contract; that deft. has not performed it; and, lastly, the damages.

Proof of Inducements.] If there be a special inducement stated in the declaration, the same must, if material to the action, be proved. A material variance between it and the proof would be fatal: see ante,

113.

Proof of the Contract or Agreement itself.] The mode of proving this will depend on the mode in which the contract or agreement was entered into. The best evidence must be given of which the nature of the case is capable: B. N. P. 293.

If the contract or agreement was by express words, the same must be proved by witnesses present when such were uttered, post, "Witnesses;" or by witnesses who have heard the deft. admit the contract or agreement was made: ante, "Admissions." As to when the contract must have been in writing, post, "Vendor and Purchaser," "Guarantee," &c.

If the contract or agreement was implied, or, in other words, if it arise from certain acts of the party himself, from which a promise by him may reasonably be inferred, those acts should be proved: Powley v. Walker, *5 T. R. 373; Legh v. Hewitt, 4 East, 154. [*141] As, where plt. sues upon a contract by the deft., as his tenant, to use the farm in a husbandlike manner, according to the customary course of good husbandry in that part of the country, the plt. must prove that the. deft. occupied the lands in question as his tenant, and the custom of the country: ib. Where the alleged promise is a legal duty, resulting from the nature of the particular service the deft. has undertaken to perform, it suffices to prove the original undertaking: Nelson v. Aldridge, 2 Stark.

435. And, therefore, an executor who has assets sufficient for that purpose, is liable, upon an implied promise, to pay for a funeral, suitable to the degree of his testator, furnished by the directions of a third person: Rogers v. Price, Ex. 3 Yo. & Jew. 28. It should be remembered, however, that promises in law exist only in cases where there is no special agreement between the parties: Toussaint v. Martinnant, 2 T. R. 100; Gwillim v. Stone, 3 Taunt. 433; Temple v. Brown, 6 ib.; 60.

If the contract or agreement was in writing, the writing must be produced, Brewer v. Palmer, 3 Esp. Rep. 213, properly stamped, if indeed a stamp be necessary, post, "Stamps;" and it must be proved to have been duly signed by deft.: post, "Hand-writing." In some cases, the production of the writing may be dispensed with: post, "Secondary Evidence." In some cases parol evidence is admissible to explain it: post, "Parol Evidence." The plt. must prove the contract or agreement in substance as stated in the declaration. A variance in any circumstance that is essential to the contract is fatal: ante, 119, also, as to variance in contract; King v. Pippett, 1 T. R. 240; Bristow v. Wright, Doug. 665, Gwinnet v. Phillips, 3 T. R. 646. If there has been any alteration in the agreement or contract, the plt. should be prepared to explain it: see ante, "Alteration of Contract."

It may as well be observed, that no contract or agreement can be raised by a mere affirmation in discourse, or by a mere offer or overture to enter into a contract or agreement not definitely and expressly assented to by both plt. and deft.; 1 Rol. Ab. 6, M. P. 1; Com. D. Action Assumpsit, F. 2; M'Iver v. Richardson, 1 M. & S. 557; Gaunt v. Hill, 1 Stark. 10; Morris v. Paton, 1 C. & P. 189; Johnson v. King, 2 Bing. 270; Chit. Cont. 4. And, to constitute a sufficient binding contract or agreement, it ought to be so certain and complete that each party may have an action on it. There must be a mutuality in every contract and agreement. Cooke v. Oxley, 3 T. R. 653. There seems, indeed, an exception to this rule; as, in a contract void against one party by the Statute of Frauds, yet it may be binding on the other who has complied with the statute, Roach v. Wadham, 6 East, 306, Allen v. Bennet, 3 Taunt. 169, Thornton v. Kempster, 5 ib., 788; or in the case of an infant's contract, who may always sue, though not be sued thereon: Holt v. Clarencieux, 2 Str. 937; and see Bloxsome v. Williams, 3 B. & C. 232. Where the contract is complete, it is binding, though it be agreed that one party shall have the option of disapproving of and determining it: Humphreys v. Carvalho, 16 East, 45; Adams v. Lindsell, 1 B. & A. 681. In the absence of an express promise or agreement between the parties, Toussaint v. Martinnant, 2 T. R. 100, Cutter v. Powell, 6 ib., 320, the law will frequently imply one: as, if I engage a person to do any work, I impliedly engage to remunerate him, Jewry v. Busk, 5 Taunt. 302, and he to use due care and skill: Shiells v. Blackburne, 1 H. Bla. 158, 162; 2 Bla. C. 443; Chit. Cont. 5, 6. If, in the absence of a husband abroad, I bury his deceased wife in a manner suitable to the husband's degree in life, the law will imply a promise by him. to reimburse me; Jenkins v. Tucker, 1 H. Bla. 90. Where an order is given previously to the delivery of goods to a bailee to deal with them in a particular manner, to which he assents, upon the receipt of

*

the goods, a duty arises on his part to deal with them according to the order previously given and assented to; and the law implies a promise by him to perform such duty: Streeter v. Horlock, 7 Moo. 287. And a promise may be implied from the invariable usage and custom of trade: Raitt v. Mitchell, 4 Camp. 149; Yeats v. Pim, 2 Marsh. 141; Greaves v. Hepke, 2 B. & A. 131. So, the custom of the country [*142] will frequently raise an implied promise, as in the instance of way going crops: Wigglesworth v. Dallison, Doug. 201; Senior v. Armytage, Holt, C., 197, ante, 141; Boraston v. Green, 16 East, 71; Naylor v. Collinge, 1 Taunt. 19; 1 Meriv. 15; Webb v. Plummer, 2 B. & A. 746. And, in many cases, where the deft. has committed a tort, the law raises an implied promise on the part of the deft. to remunerate plt. for any loss he may have thereby sustained; and "the plt. may waive his rightto recover damages for the tort, and may say, (as in the case of harbouring an apprentice), that he is entitled to the labour of his apprentice," and may bring assumpsit to recover an equivalent for that labour; and it is not competent for the deft. to answer that he obtained that labour not by contract, but by wrong:" p. Mansfield, C. J., Lightly v. Clouston, 1 Taunt. 114. An implied promise cannot arise from a mere moral obligation: Hawkes v. Saunders, Cowp. 290; Blight v. Page, 3 B. & P. 294, n.; Atkins v. Banwell, 2 East, 506; Chit. Cont. 10. See further, as to implied contracts, post, " Warranty," "Landlord and Tenant."

Proof that the contract or agreement was made with the Plaintiff.] It must be proved that the plt. was the person with whom the contract was made; or, in other words, that he was the party legally and really interested in it when made: Skinner v. Stocks, 4 B. & A. 437; Anderson v. Martindale, 1 East, 497; Dawes v. Peck, 8 T. R. 332; 1 Saund. 154. Proof of his having entered into by his agent will do: post, "Principal and Agent." Plt. having an equitable interest in a contract is not sufficient: therefore, a cestui que trust cannot sue: Allen v. Jenlett, Holt, C. 641. And, where a promise is made to A. to pay him a sum of money for the use or benefit of B., B. cannot sue, having no legal interest: the action should have been brought by A.: Shaw v. Sherwood, Cro. E. 729; Cramlington v. Evans, 2 Vent. 310; Carth. 5. But, if the promise had been with A. to pay B. a sum of money, A. or B. might sue: Carnegie v. Waugh, 2 D. & R. 277; 3 B. & P. 149, n.; Comp. of Feltmakers v. Davis, 1 B. & P. 101; Phillips v. Bateman, 16 East, 370; B. N. P. 133. And, in some cases, where a person has made a contract for the benefit of another, the latter may adopt it, and sue thereon: Hagedorn v. Oliverson, 2 M. & S. 485, 490. Where money in litigation between two parties was, by mutual consent, paid over to a person in trust for the party entitled, it was held that it could only be sued for, and recovered from the trustee, by the party entitled to it: Ker v. Osborne, 9 East, 378. But where A. gave a sum of money into the hands of B. to pay to C., and B. had not paid it over to C.; it was held that if C. had not consented to receive this sum of B., A. might countermand the authority, and recover it back from B. Owen v, Bowen, 4 Carr. & Payne, 93. And money deposited with a

stakeholder can only be recovered from him by the party legally entitled to it: Pichard v. Bankes, 13 East, 20; Cotton v. Thurland, 5 T. R. 405; Aubert v. Walsh, 3 Taunt. 277; Smith v. Bickmore, 4 ib., 474. And, where a person, holding a bill of exchange in trust for another, commenced an action on it, and then became bankrupt, the deft. having escaped, the assignees brought an action for the escape, and recovered damages to the amount of the bill: it was held, that the person beneficially interested, and for whom the bankrupt held the bill in trust, might maintain an action for money had and received against the assignees for the amount thus recovered by them, allowing them the costs and expenses: Randoll v. Bell, 1 M. & S. 714. "When goods are to be delivered at a distance from the vendor, and no charge is made by him for the carriage, they become the property of the vendee as soon as they are sent off," Fragano v. Long, 4 B. & C. 222; and he being the person to whom they belong, the law implies the contract for the carriage to have been made by the vendee, who is therefore the proper person to sue for any negligence on the part of the carrier: Dawes v. Peck, 8 T. R. 330; 2 Sound. 47, k,; Moores v. Hopper, 2 N. R. 411; Anderson v. Clarke, 2 Bing. 20. But, if the property in the goods has not become vested in the vendee, he will have no legal interest in the

contract to enable him to support an action of assumpsit: Sar[*143] gent v. Morris, 3 B. & A. 277; Evans v. Marlett, 1 Ld.

Raym. 271; King v. Meredith, 2 Camp. 639. In some cases, agents beneficially interested in a contract may sue: ante, "Agent, Actions by." As to actions by corporations, post," Corporation." If it appear that the plt. has no legal interest in the contract, he will be nonsuited. The plt. should be prepared to show his ability to sue, if it is supposed deft. will set up a defence denying it; such as bankruptcy, alien enemy, coverture, &c. See those titles.

The plt. must prove that he is the only person with whom the contract was made, or in whom the legal interest in the contract was vested at the time of its being made: for all the parties in whom the joint legal interest in a contract is vested must join in the action; and this though the contract was made with several, or was in its terms joint and several: Eccleston v. Clipsham, 1 Saund. 153; Withers v. Bircham, 3 B. & C. 254; 6 D. & R. 106; Anderson v. Martindale, 1 East, 497, 501. Therefore, where plt. sued as principal of Furnival's Inn Society, on an account stated with him for money due to him and the seniors of the society, it was held bad in arrest of judgment, for, per cur.-" A promise to one is a promise to all, and all of them must join; for the debt upon the account stated arises to so many particular persons:" 7 Mod. 116. And, where the plts. make a payment in one sum, and as a joint payment, they must join in an action to recover the money so paid, &c.: May v. May, 1 C. & P. 44. Where bail called together upon an attorney, and employed him to surrender their principal, they must both join in action against the attorney for neglecting to effect the render pursuant to his undertaking: for the retainer being joint, by reason of the bail being mutually responsible for each other, and the act to be done operating equally in favour of each, a joint undertaking would necessarily be implied: Hill v. Tucker, 1 Taunt. 7, 9. So, where the separate cattle

of A. and B. were distrained, and C., in consideration of £10 paid him by them jointly, promised to have their cattle re-delivered to them, the court held that A. & B. should join in the action, because the contracts were joint: "it not being known how much the one gave, and how much the other :" 1 Rol. Ab. 31, pl. 9; Sty. 156-7, 203. Though it is competent to parties, in forming a company, to enter into an agreement that two of the members may sue, yet no subsequent alteration, without the consent of the member to be sued, can give a right of action to only one of the company: Davies v. Hawkins, 3 M. & S. 488. But, where several persons jointly interested agreed to horse a coach, each of them one stage on a road, and that, in case of default, one of them should sue the defaulter for a penalty, which should be divided amongst the nondefaulters, but in which deft. should have no interest, it was held, an action would lie on the agreement against the defaulter by the party so appointed to sue, and that the others need not be joined: Radenhurst v. Bates, 3 Bing. 463. If the cause of action and legal interest of the plt. in the contract is several, he need not join any other party, though the words of the contract made such party jointly interested: Anderson v. Martindale, 1 East, 497; 1 Saund. 153, n. 1; 1 Chit. Pl. 6. And, in case of a joint interest, if two or more have paid their shares, the third may, in respect of such severance, sue alone for his proportion: Garrett v. Taylor, 1 Esp. D.117. And, when a contract is expressly made with one partner only, and deft. did not, at the time of the contract, know there were other partners, that one may sue: as, where one of several joint owners of a ship engaged in the whale fishery made the contract with the deft., who did not know at the time that others were concerned, it was held, that the action lay either by the party with whom the contract was actually made, or in the names of all the parties really interested: Skinner v. Stocks, 4 B. & A. 437; Parsons v. Crosby, 5 Esp. Rep. 199. A mere nominal partner, who has no legal interest, need not be joined, Glossop v. Colman, 1 Stark. 25, Guidon v. Robson, 2 2 Camp. 302, Teed v. Elworthy, 14 East, 210, Dubois v. Ludert, 1 Marsh. 246, Davenport v. Rackstrow, 1 C. & P. [*144] 89,1 Chit. Pl. 7; nor need an infant, 1 Stark. 25, or dormant partner, Burge v. De Tastet, 3 Stark. 53, Lloyd v. Archborole, 2 Taunt. 324, 5; sed vide 1 Marsh. 246. But plt. should be prepared to prove the fact of such party being a mere nominal or dormant partner, or an infant post, "Partners," "Infant." If the contract is made with others who are not, but ought to be, joined, it will be ground of nonsuit on the trial, 1 Saund. 291, f., Snelgrove v. Hunt, 2 Stark. 424, 1 Chit. Rep. 74, s. c., or for a plea in abatement, Com. D. Abt. E. 12; and, if the defect appear upon the pleadings, the deft. may take advantage of the nonjoinder on writ of error, Slingsby's case, 5 Co. 18, b., 1 Saund. 154, a., Leglise v. Champante, 2 Str. 820, Vernon v. Jefferys, ib. 1146, Bull. N. P. 158, Cabel v. Vaughan, 1 Vent. 34, Skin. 401; or he may demur, or arrest the judgment: 1 Saund. 291, f., 154, a.; 2 Str. 820; ib. 1146; Scott v. Godwin, 1 B. & P. 75. The omission will be a ground for nonsuit, though the party be dead: Jell v. Douglas, 4 B. & Å. 374.

In an action by several plaintiffs, it must be proved that the contract