[B] Indebitatus or General Assumpsit

The learning about this subspecies of the writ of assumpsit is vast and largely irrelevant to contemporary analysis of contract problems, but some familiarity with the subspecies can be an aid to understanding some of the old cases and textbooks, as well as some rules of law that might otherwise appear as enigmatic as the statutes of Easter Island.n9 The writ of indebitatus assumpsit was available for the collection of debts, whether for reasonable value (quantum meruit for services, quantum valebant for goods) or for a sum certain. Under this writ, it was permissible to use a simplified form of pleading, the ''common counts,'' which are still in use in many jurisdictions that have abandoned other elements of common law pleading.n10 The common counts in assumpsit are merely abbreviated and stereotyped statements that the defendant is indebted to the plaintiff for a variety of commonly recurring reasons, such as money had and received, money lent, work and labor done, and goods sold and delivered. They are allegations of indebtedness, and the action may properly described as indebitatus assumpsit. Indebitatus was available for debts whether contractual or not and, in the tortured logic of yesteryear, was deemed to rest on an obligation implied in law even if a promise, express or implied in fact existed.n11 The common counts could be used for the enforcement of express promises if they were such as to create a money debt, as well as for the enforcement of implied promises and quasi contracts. It cannot be said that the line between express assumpsit and the common indebitatus counts is also the distinguishing line between express promises and implied promises or between actual promises and quasi contracts. There was no reason why a quasi contract should not be enforced in an action of ''special'' assumpsit-an action on the special case-rather than in ''general'' assumpsit in which the case is stated in one or more of the common counts.n12

[C] Special Assumpsit

Special assumpsit lay for the recovery of damages for breach of an informal contract whether express or implied in fact. It had little role in the enforcement of ''implied in law'' obligations. Because it was the predicate for an action for damages, it could not be the basis for collection of a debt and the ''common counts'' could not be used. Rather the facts had to be specially pleaded. The essential allegations were (1) the statement of the making of the contract and the terms of the promise, (2) the consideration, (3) the performance by plaintiff of all conditions precedent, (4) the breach, and (5) the damages.n13 This rule of pleading has not changed in any essential way.n14

Legal Topics:

For related research and practice materials, see the following legal topics:

Contracts LawBreachGeneral OverviewContracts LawBreachCauses of ActionAssumpsitContracts LawTypes of ContractsImplied-in-Fact ContractsContracts LawTypes of ContractsExpress Contracts

FOOTNOTES:

(n1)Footnote 1. This section consolidates §§ 17 and 20 of the 1963 edition of this treatise.

(n2)Footnote 2. The distinction between formal and informal contracts is discussed in § 1.5 above.

(n3)Footnote 3. The defendant ''would take an oath in open court that he did not owe the debt, and at the same time bring with him eleven neighbors, (called 'compurgators'), who should avow upon their oaths that they believed in their consciences that he said the truth.'' See ''Wager of Law,'' Black's Law Dictionary (6th ed.).

(n4)Footnote 4. 4 Coke, 92b (1602).

(n5)Footnote 5. Surprisingly, however, a WESTLAW search shows some six thousand cases in which the word ''assumpsit'' has been used in cases in the ALLSTATES data base. The term continues to be employed in the pleadings in a number of states.

(n6)Footnote 6. This section is cited in Lewis v. Hill, 409 S.W.2d 946 (Tex.Civ.App.1966) where the appellate court disagreed with the trial court's view of whether the facts supported the inference of an implied promise. It was also cited in Emmer v. Phillips Petroleum Co., 668 S.W.2d 487 (Tex.Civ.App.1984) , the court noting that §§ 1.18 and 1.19 take the view that there is no difference between ''express'' and ''implied'' contracts there being only a difference in the manner of expressing assent. The court noted that, ''The observation is valid, but the benefit of using commonly understood terms outweighs the detriment of tolerating the imprecise thought processes underlying the use of the terms.''

(n7)Footnote 7. See Nehi Beverage Co., Inc. v. Petri, 537 N.E.2d 78, 85 (Ind.App.1989) where the court states: ''Our courts have used the phrases quasi-contract, contract implied in law, constructive contract and quantum meruit synonymously.''

Campbell v. TVA, 421 F.2d 293 (5th Cir.1969) is instructive. Daniel, the director of TVA's technical library made an oral agreement with Campbell for him to reproduce technical trade journals. Campbell delivered the resulting microfilms to the library. After they were used for some months, they were returned and payment was refused. TVA pointed out that Daniel lacked authority to contract for TVA and had done so without his superior's knowledge. Campbell sued for $30,000, the contract price, in ''quantum meruit,'' the original theory of the complaint being a contract implied in fact. When it was apparent that this could not be the basis of recovery because of Daniel's lack of authority, the complaint was amended to express a theory of a contract implied in law. A judgment entered on a jury verdict for Campbell was affirmed, one judge dissenting on the ground that the court was in effect enforcing the unenforceable contract.

(n8)Footnote 8. In no event, however, should the claimant recover the same indebtedness twice under theories of express contract and quasi contract. Nehi Beverage Co., Inc. v. Petri, 537 N.E.2d 78 (Ind.App.1989) .

(n9)Footnote 9. For example, the finding the appropriate statute of limitations may turn on knowledge of the old writs. See, e.g., Uhl v. Fox, 31 Colo.App. 13, 498 P.2d 1177 (1972) . Also, a new promise to pay a debt (indebitatus assumpsit) is treated differently from a new promise to honor an executory contract or to pay damages (special assumpsit). Restatement of Contracts (Second) § 82 comment b.

(n10)Footnote 10.

Cal. - Interstate Group Administrators, Inc. v. Cravens, Dargan & Co., 174 Cal.App.3d 700, 220 Cal.Rptr. 250 (1985) . It was held that because the common counts reveal so little about the plaintiff's claim, an affirmative defense can be proved although defendant merely served a general denial.

Conn. - Town of Westport v. Bossert Corp., 165 Conn. 410, 335 A.2d 297, 298 (1973) (''The principal issue raised and argued on this appeal is whether the common counts writ can be used to initiate an action to collect municipal taxes.'' It was held proper to initiate the action in this way.)

(n11)Footnote 11. See Joseph H. Koffler & Alison Reppy, Handbook of Common Law Pleading 337-367 (1969) for an in-depth discussion and thorough bibliography. See also, the more recent and detailed, A.W.B. Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (1975).

(n12)Footnote 12. See James B. Ames, History of Assumpsit, 2 Harv.L.Rev. 1, 53. See also works dealing with the forms of action at common law.

In Western Machinery Co. v. Consolidated Uranium Mines, Inc., 247 F.2d 685 (10th Cir.1957) the court held that the jury's verdict for a specific sum could be justified either on the ground of a contract implied in fact or on that of a quasi contract for reasonable value of services rendered.

(n13)Footnote 13. See generally, Joseph H. Koffler & Alison Reppy, Handbook of Common Law Pleading 318-336 (1969) and the bibliography cited therein. See also, Alfred W.B. Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (1975).

(n14)Footnote 14. The pleading of conditions precedent has been simplified. Rule 9 of the Federal Rules of Civil Procedure states: ''In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.''