2 Stark. 227. And where a bill is given for goods, and dishonoured, the vendor may sue for the price of the goods imme diately, 7 Taunt. 312, Hickling v. Hurday, 1 B. Moore, 61, S. C. Mussen v. Price, 4 East, 151; provided the bills are in the hands of the seller; but if they are in the hands of third persons, that is a defence to the action, where the defendant may be called upon by those persons to pay the bills. Kearslake v. Morgan, 5 T.R. 513. Burden v. Hallen, 4 Bingh. 455. If, by the contract, it was agreed that a bill at a certain date should be given, it operates as a giving of credit; and although no bill should be given, the seller cannot sue the purchaser for goods sold and delivered, before the period when the bill, if given, would have become due. Mussen v. Price, 4 East, 154, supra. Upon a sale of goods at six or nine months, the purchaser, by not paying at the end of six months, makes his election to take credit for the nine months. Price v. Nixon, 3 Taunt. 338. " As to the defence of illegality in this action, vide post, 'Assumpsit—defence." ASSUMPSIT FOR WORK AND LABOUR. In an action for work and labour, the plaintiff must prove, 1. The contract; 2. The performance of the work and labour at the defendant's request; and 3. The value. The contract.] Although a special contract has been entered into, the plaintiff is permitted, in certain cases, to recover. upon the general indebitatus count. Whenever the duty of the defendant arising upon the execution of the consideration is simply to pay money, the usual and safest mode of pleading is, to declare in indebitatus assumpsit, as in the case of goods sold, work and labour done, and other cases. Per Park, J., Streeter v. Horlock, 1 Bingh. 37. And where there is a special agreement, the terms of which have been performed, it raises a duty for which an indebitatus assumpsit will lie. B. N. P. 139. Robson v. Godfrey, Holt, 237. Studdy v. Sanders, 5 B. and C. 638. So if there is a special agreement, and the work has been done, though not pursuant to such agreement, the plaintiff may recover upon the quantum meruit, for otherwise he would not be able to recover at all. Ibid. But the defendant may refuse to take to the subject matter of the plaintiff's work and labour, where there is a deviation from the special contract; and, in such case, the plaintiff cannot recover on the quantum meruit; see Ellis v. Hamlen, 3 Taunt. 52, 4 Taunt. 748; though it is otherwise where the defendant has acquiesced in and adopted the deviations. Burn v. Miller, 4 Taunt. 745. Where there is a special contract, but additional work has been done, not included in the special contract, the value of the additional work may be recovered under the indebitatus count, although from the stipulations of the special contract as to credit, &c. the value of the work done under the special contract cannot be recovered. Robson v. Godfrey, Holt, 236, 1 Stark 275, S. C. Where the special contract is so entirely abandoned that it is impossible to trace it, the workman shall be permitted to charge for the whole work done, by measure and value, as if no contract had ever been made; but if not wholly abandoned, the contract shall operate as far as it can be traced, and the excess only shall be paid for according to the usual rate of charging. Pepper v. Burland, Peake, 103. Where there is a written contract it must be produced, although the plaintiff seeks to recover for extras, and the defendant has admitted one of the items to be extra. Vincent v. Cole, 1 M. and M. 257. But where a man is employed to do work under a written contract, and a separate order for other work is afterwards given by parol during the continuance of the first employment, the written contract need not be produced by the plaintiff in an action for the second work. Reid v. Batte, 1 M. and M. 413. Where the defendant had contributed to the funds of a building society, and had been present at a meeting of the society, and party to a resolution that certain houses should be built, it was held that this made him liable to an action for work done in building those houses, without proof of his having an interest in them or in the land. Braithwaite v. Skofield, 9 B. and C. 401. Where the defendant requested the plaintiff to take care of and show his (the defendant's) house, and promised to make him a handsome present, it was held that the plaintiff might recover a reasonable recompense for this work and labour; Jewry v. Busk, 5 Taunt. 302; but where a person performed work for a committee, under a resolution entered into by them, "that any service rendered by him should be taken into consideration, and such remuneration be made as should be deemed right," it was held that an action would not lie to recover a recompense for such work. Taylor v. Brewer, 1 M. and S. 290. There is no implied assumpsit to pay an arbitrator for his trouble. Verany v. Warne, 4 Esp. 47; but see 1 Gow, 8, Per Dallas, C.J. contra. A master may maintain assumpsit for the work and labour of his apprentice, against a person who harbours him after his desertion, for he may waive the tort, and sue on the implied contract. Foster v. Stewart, 3 M. and S. 191. Under the general count for work and labour, the plaintiff may give evidence of a particular species of work and labour as a farrier, and the medicines administered by him may be considered as materials within the count; Clarke v. Mumford, 3 Campb. 37; and see Meeke v. Oxlade, 1 N. R. 289; but where the claim for materials found," &c. was omitted in the count for work and labour, it was held that the plaintiff, who sought to recover for building a house and furnishing the timber, could not recover for the latter under the count for goods sold and delivered. Cotterell v. Apsey, 6 Taunt. 322. An action for work and labour will not lie by a person who manufactures a chattel out of his own materials. The rule is thus laid down by Mr. Justice Bayley: "If you employ a man to build a house on your land or to make a chattel with your materials, the party who does the work has no power to appropriate the produce of his labour and your materials to any other person. Having bestowed his labour at your request on your materials, he may maintain an action against you for work and labour. But if you employ another to work up his own materials in making a chattel, then he may appropriate the produce of that labour and materials to any other person. No right to maintain any action vests in him during progress of the work; but when the chattel has assumed the character bargained for, and the employer accepted it, the party employed may maintain an action for goods sold and delivered; or if the employer refuses it, a special action on the case for such refusal, but he cannot maintain an action for work and labour, because the labour was bestowed on his own materials, and for himself, and not for the person who employed him." Atkinson v. Bell, 8 B. and C. 283. the Contract.-Repairs of ships.] Registered ownership (that is, proof of the register, and that such register has been made with the assent of the parties therein named) is primâ facie evidence of the liability of those parties for the repairs of the ship; Cor v. Reid, R. and M. 199; but such evidence may be rebutted by proof of the beneficial interest having been parted with, and of the legal owner having ceased to interfere with the management of the ship. Jennings v. Griffiths, R. and M. 42. Young v. Brander, 8 East, 10. The true question in matters of this description is, "Upon whose credit was the work done?" Per Abbott, C.J., Jennings v. Griffiths, R. and M. 43. So a person who takes a share in a ship, under a void conveyance, is not liable for articles furnished to the ship, unless credit be given to him individually, or he holds himself out as owner. Harrington v. Fry, 2 Bingh. 179. An undertaking by the defendant's attorney "to appear for Messrs. T. and M. joint owners of the sloop A." is evidence against the defendants of the joint ownership. Marshall v. Cliff, 4 Campb. 133. Whether a mortgagee of a ship, before possession, was liable to repairs, was formerly much doubted; see Briggs v. Wilkinson, 7 B. and C. 30; but now, by recent acts of parliament, when a transfer is made only as a security for the payment of debts, by way of mortgage, or of assignment to trustees by way of sale, on a statement being made in the book of registry, and in the indorsement on the certificate of registry to that effect, the person to whom the transfer is made, or any other claiming under him, is not to be deemed the owner, nor is the person making such transfer to be deemed to have ceased to be an owner, except so far as may be necessary for the purpose of rendering the ship transferred available by sale or otherwise, for the payment of those debts, to secure the payment of which the transfer was made. 4 Geo. IV. c. 41, s. 43, 6 Geo. IV. c. 110, s. 45. Abbott on shipping, 17, 5th ed. Performance at the defendant's request.] The plaintiff must prove a performance of the work and labour, according to the terms of the contract, or if there is a deviation from those terms, an acquiescence by the defendant in the deviation, vide supra. Thus in an action to recover the value of a riding-habit, for which the defendant's wife had been measured, but which was returned to the plaintiff on the day on which it was delivered, it was ruled to be incumbent on the plaintiff to prove that the habit was made agreeably to the order. Hayden v. Hayward, 1 Camph. 180. So a herald, who sues for making out a pedigree, is bound to give some general evidence of the truth of the pedigree. Townsend v. Neale, 2 Campb. 191. In general, the contract will be evidence that the work has been performed at the defendant's request, or the request may be inferred from the defendant's acquiescence in the work which is carrying on upon his premises, or from his voluntarily availing himself of the benefit of the plaintiff's services. 3 Stark. Ev. 1763. Where A., who was employed by the defendant to transport goods to a foreign market, delegated the entire employment to the plaintiff, who performed it without the privity of the defendant, it was held that the plaintiff could not recover from the defendant a compensation for such service. Schmaling v. Tomlinson, 6 Taunt. 147. Value.] In what manner the value of the work is to be calculated where there is a special contract and deviations from it, has been already mentioned, ante, p. 221. In an action for work and labour as a surveyor, Lord Kenyon held that the plaintiff was only entitled to a reasonable compensation, not to be estimated by the amount laid out by the defendant in the building, which is the custom with surveyors. Upsdell v. Stewart, Peake, 193. But in a subsequent case, Lord Ellenborough left it to the jury, to say whether the usual commission of five per cent. was a vicious or unreasonable mode of charging, and the jury found for the plaintiff for the whole demand. Chapman v. De Tastet, 2 Stark. 294; see also Maltby v. Christie, 1 Esp. 340. Defence. Where the work has not been executed according to the contract, the party for whom it is executed may repudiate it, and in such case the plaintiff cannot recover. Ellis v. Hamlen, 3 Taunt. 52, ante, p. 221. So if the defendant has received no benefit, from the work having been improperly executed by the plaintiff, the latter cannot recover. Farnsworth v. Gurrard, 1 Campb. 38. Duncan v. Blundell, 3 Stark. 6. Montriou v. Jefferies, R. and M. 317, ante, p. 200. Thus an auctioneer, through whose gross negligence the sale becomes nugatory, can recover nothing for his services. Denew v. Duverell, 3 Campb. 451. But where the defendant has derived some benefit from the plaintiff's service, he must pay pro tanto; Farnsworth v. Garrard, 1 Campb. 38; and if he seeks to reduce the plaintiff's damages, on account of a non-compliance with the terms of the contract, he should, as it seems, give notice to the plaintiff that he considers the contract not complied with. See unte, p. 220. However, in a late case, where the plaintiff had contracted to repair some chandeliers for 10l., and returned them incompletely repaired, in an action for work and labour it was held that as the plaintiff had not performed his part of the contract, he could not recover any thing, though the jury found that the repairs were worth 5l. Sinclair v. Bowles, 9 B. and C. 92. As to the defence of illegality in this action, vide post, “Assumpsit-defence." must ASSUMPSIT FOR MONEY PAID. The plaintiff, in an action of assumpsit for money paid. prove, 1. The payment of the money; 5. That it was paid at the request of the defendant. The payment of money.] The plaintiff must prove that money was paid, the giving a security as a bond or warrant of attorney is not sufficient, Taylor v. Higgins, 3 East, 169, Maxwell v. Jameson, 2 B. and A. 51, unless, perhaps, where a bill or note is taken as payment. Barclay v. Gooch, 2 Esp. 571. So stock cannot be considered as money. Jones v. Brindley, 1 East, 1. The plaintiff must prove that the money paid was his money. Thus an under-tenant, whose goods have been distrained and sold by the original landlord, for rent due from his immediate tenant, cannot maintain an action for money paid to the use of the latter; for immediately on the sale under the distress, the money paid by the purchaser vests in the |