Opinion
March Term, 1858
Amasa J. Parker, for the appellant.
Asher P. Nichols, for the respondent.
The first point made by the counsel for the appellant is, that for the portion of the work and labor done under the special contract, the remedy of the plaintiff was upon that contract; and that he was not entitled to recover upon the common counts. It is necessarily assumed in support of this position that the contract is the cause of action for that work and labor; and if that be so, the position is correct; that cause of action not being stated in the complaint, and the objection being taken at the trial, the referee erred in allowing the part of the plaintiff's claim in question. But the assumption is wholly unwarranted in the case. It was not objected at the trial that the contract had not been fully performed on the part of the plaintiff; no question was raised, and, so far as appears, there was no ground for any question on that subject. Hence it must be deemed that the plaintiff had done all that was incumbent on him to do, and that nothing remained to be done by the contract but payment of the stipulated price by the defendant. The case is therefore within the well settled rule that where there is a special agreement and the plaintiff has performed on his part, the law raises a duty on the part of the defendant to pay the price agreed upon, and the plaintiff may count either on this implied assumpsit or on the express agreement. A new cause of action upon such performance arises from this legal duty, in like manner as if the act done had been done upon a general request without an express agreement. ( Lawes' Pl., 5; Jewell v. Schroeppel, 4 Cow., 564; Feeter v. Heath, 11 Wend., 484; Mead v. Degolyer, 16 id., 637, 638; Clark v. Fairchild, 22 id., 576.) This rule is not affected by the Code: the plaintiff might, as he has done, rest his action on the legal duty; and his complaint is adapted to and contains every necessary element of that cause of action. It was not necessary to state in terms a promise to pay; it was sufficient to state facts showing the duty from which the law implies a promise; that complies with the requirement that facts must be stated constituting the cause of action. ( Allen v. Patterson, 3 Seld., 476.)
The defendant was not precluded by the form of the complaint from setting up and availing himself of any defence he had under the contract.
All the judges concurring,
Judgment affirmed.