Pynchon v. Brewster

1 Super. Ct. Jud. 224

Opinion

But the

Chief Justice

laid, that Boarding and Schooling were uncertain as to Price, and a Quantum Meruit must be brought; but that Travel for Physicians, their Drugs and Attendance, had as fixed a Price as Goods fold by a Shopkeeper, and that it would be a great Hardship upon Physicians to oblige them to lay a Quantum Meruit. And the Chief Justice, who alone summed up this Cafe to the Jury, said that the Custom here had always been in such Cafes to lay an Indebitatus Assumpsit

Footnotes

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* though in England it would not do; and that the Jury might, upon an Indebitatus Assumpsit, they thought it reafonable, lessen the Charges in the Account. This was solemnly affirmed by all the five Judges, in the Course of this Debate, to be Law here; though it was not, in Great Britain.*

1766.

The Jury did, according as the Law was laid down to them, and struck off about £7 from the Account, lowering the Charges, probably, to what they thought “ reasonable.”

Qu. and vid. 2 Vol. p. 113, Dr. Holden vs. Day. Qu. Where is the true Boundary Line between an Indebitatus Assumpit, and a Quantum Meruit, on this Side the Water?

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The Resolution in this Cafe was denied to be Law by the whole Court, Ch. Just, absente, in the Cafe of Letestu & Glover, August Term, 1770. (¹)

1

(1) We find a report of the cafe of Glover v. Le Testue among John Adams’s papers, as follows :

“ Glover vs. Le Testue, Aug. 1770.

“ Indebitatus Assumpsit for Visits and Medicines. The Question “ whether Indebitatus will lie, or Quantum meruit ? — Ans. Indebitatus “ will not, because no Contract for a certain Price for the Visits or “ Druggs. 2 Instructor Cler. 162, ‘if one sue upon a Promise to satisfye “ him for Work done, he must shew in his Declaration how much he deserved for his Work.’ So if one sue for a Thing sold, where no Price “ was agreed upon, he must aver, and shew it to be worth so much.

“ 2 Instructor Cler. 151. Assumpsit for Wines fold and delivered — “ Note in the Margin. ‘ On this Count (find. Ass.,) the Plaintiff must “prove the express Price agreed on.’'—Page 152. Note in the Margin. “ ‘ But on this Count (Quant. Mer.) the Delivery only is sufficient.’

“ I Salk 23, Hard’s Cafe. Indebitatus Assumpsit will lie in no Cafe, but where Debt lies, &c. But fee I Burrows, 374, Harris vs. Huntbach. 2 Burrows, 1006, Moses vs. Macfarlan, page 1008 — Ld. Manffield. ‘ The first Objection is, yt an Action of Debt would not lie here; and no assumpsit will lie where an Action of Debt may not be brought. Some sayings at Nisi Prius reported by Note-Takers, who did not understand the Force of what was said, are quoted in Support of that Proposition. But there is no Foundation for it,’ &c., An Action of Assumpsit will lie in many Cafes where Debt lies, and in many where it does not lie.’ Slade’s Cafe, 4 Co. 92.

“ I Fitzherb. 119. ‘ A Writ of Debt properly lieth where a Man oweth another a certain Sum of Money by Obligation or by Bargain for a Thing sold, or by Contract, or upon a Loan made by ye Creditor to ye Debtor,’ &c.

“ I Mod. Ent. 299. There are two Sorts of Promises, express or implied,— an exprefs Promise is where a Person promises, yt he will pay a Sum of Money, &c.

“ At the Bottom, 5, — ‘ An implied Promise is such as is raised by Implication of Law upon the Nature of the Cafe, as where a Man fells, and delivers Goods to another, tho’ he cannot prove an express Promise to pay for them ; and where the Price is not of ascertained Value between the Parties, ye Law implies that the Defendant promised to pay for such Goods, fo much as they were worth; So if a Man sets another to Work, and no Price is agreed, nor any express Promise to pay, the Law implies that the Person who set the Man to work contracted with him and promised to pay him fo much as he defsrved.’

“ The Court unanimously adjudged, that Indebitatus Assumpsit would not lie upon the Account in this Cafe, neither for Visits, Bleeding nor Medicines, but allowed Plaintiff to file a new Declaration on Quantum Meruit on Payment of Costs.

“ A Tender may be pleaded to a Quantum Meruit. 5 Bac. Abr. 27. 1 Str. 576, Johnson vs. Lancaster.

A declaration on an implied promise “ is said to be in general assumpsit : which is either indebitatus assumpsit, wherein the plaintiff generally states that the defendant being indebted in a certain specific sum promised to pay that sum, or upon a quantum meruit or quantum valebant.'’’’ Lawes on Pleading in Assumpsit, 2. And it was formerly held that under the former count, only the exact sum laid could be recovered, because otherwise “ the same assumpsit was not found that the plaintiff did declare upon.” Bagnal v. Sacheverell, Cro. Eliz. 292. But in Thompson v. Spencer, 8 Geo. 3, it was held that the plaintiff might in such case recover what was justly due. Id. (5th ed.) in notis. It would appear therefore that the decision in Pynchon v. Brevofter was in accordance with the law of England, when overruled, in 1770, though not when made in 1765.