§ 430. * 536. Attitude of Courts in Instances Cited largely Due to Liberal Rule of Construction. The cases contained in the last three paragraphs, and from which quotations have been made, were not selected as examples of proper pleading according to the principles established by the reformed procedure; on the contrary, most of those which were sustained by the courts escaped condemnation only by applying the liberal rule of construction prescribed in the codes. These decisions are given rather to show how far a pleading

ments as to form and method, and may violate all the principles of logical order and precision of statement, and may yet be held sufficient on general demurrer, because the material facts constituting a cause of action can be discovered among the mass of confused or imperfect allegations. The principles and doctrines of pleading adopted and enforced by the courts are illustrated and explained by such examples as these, but the cases themselves are to be carefully avoided as precedents. The mode of correcting imperfect and insufficient averments as distinguished from those which state no cause of action, and the liberal rule of construction introduced by the code, will form the subject of a separate and careful discussion in a subsequent portion of this chapter.

§ 431. * 537. Doctrine that Facts Pleaded should be stated as they occurred or existed. Two Questions Presented. In considering the third general doctrine developed in the preceding analysis, namely, that the facts pleaded should be stated as they actually occurred or existed, and not their mere legal aspect, effect, or operation, two practical questions are presented, and the discussion will be mainly confined to them. These questions are, (1) whether in actions based upon the common-law notion of an implied contract the pleader should simply allege the facts as they really occurred from which the legal duty arises, without averring a promise which was never made, or whether he must or may, as in the common-law assumpsit, state a promise to have been expressly made which is the legal effect or operation of those facts; and (2) whether the ancient common counts, or allegations substantially identical therewith, fulfil the requirements of the new procedure, and can be used, in conformity with its fundamental principles, as complaints or petitions in the classes of actions to which they would have been appropriate under the former system. I shall take up these questions separately, first collecting and comparing the decisions bearing upon each; and, secondly, discussing them upon principle.

§ 432. 538. (1) Necessity or Propriety of Alleging a Promise in Actions upon Implied Promises. There is a marked unanimity of opinion among the decisions which directly involve this question, since most of them accept the language of the codes, and fully recognize the radical change in principle effected by the

reformed procedure. In Farron v. Sherwood,1 after sustaining a complaint substantially a general count in assumpsit for work and labor without any averment of a promise by the defendant, the New York Court of Appeals said: "It is not necessary to set out in terms a promise to pay; it is sufficient to state facts showing the duty from which the law implies the promise. That complies with the requirement that facts must be stated constituting the cause of action." This language was not a mere dictum ; it was absolutely essential to the judgment, since the complaint contained no averment of a promise, and was nevertheless held sufficient. The decision must therefore be regarded as settling the doctrine for that State. In another action to recover compensation for work and labor, where the complaint stated various services performed by the plaintiff from which it was claimed a duty on the part of the defendant arose, but alleged no promise by him, the Supreme Court of New York adopted the same rule of pleading. On the other hand, the Supreme Court of Wisconsin said by way of a dictum in an early case: "Good pleading requires that a promise which the law implies should be stated." 3 And in an action for services alleged in the petition to have been performed at the request of an agent of the defendant, the Supreme Court of Missouri held that either the promise must be averred, or the facts from which a promise will be inferred, as a matter of law. In Montana, the rule is distinctly established

1 Farron v. Sherwood, 17 N. Y. 227, 230. See also Mackey v. Auer, 8 Hun, 180; De la Guerra v. Newhall, 55 Cal. 21; Moore v. Hobbs, 79 N. C. 535; Jones v. Mial, 79 id. 164; Emslie v. City of Leavenworth, 20 Kan. 562; Stephenson v. Ballard, 50 Ind. 176.

2 Cropsey v. Sweeney. 27 Barb. 310, 312, per Sutherland J., who delivered the following opinion: Although the form of the action of assumpsit, and of the pleadings therein, has been abolished, yet the obligation of contracts and the distinction between an express and an implied assumpsit remain; and notwithstanding the code, in a large class of cases now as before the code, it is only on the theory of an implied assumpsit, inferred from the conduct, situation, or mutual relations of the parties, that justice can be enforced, and the performance of a legal duty compelled. It is no longer

necessary, and perhaps not even proper, in such a case, for the plaintiff to allege in his complaint any promise on the part of the defendant, but he must state facts which, if true, according to well-settled principles of law, would have authorized him to allege, and the court to infer, a promise on the part of the defendant before the code. The form of assumpsit is no longer necessary, nor perhaps even proper, in such a case; but facts sufficient to raise it, and to put it on paper were it lawful to do so, are still necessary." He goes on to hold that the special facts alleged in the complaint raise no implied promise.

8 Bird v. Mayer, 8 Wis. 362, 367. This remark was entirely obiter. The question before the court was, whether a warranty sued on was express or implied.

4 Wells v. Pacific R. R. Co., 35 Mo. 164. The allegation of a performance at the request of an agent of the defendant

that the facts from which the promise is inferred should be pleaded, and not the promise itself; but that in an action on an express promise it must be alleged.1 The Supreme Court of Indiana has held with evident reluctance that in such a case it is not necessary for the party to aver a promise, and that it is enough for him to state the facts from which the law implies it. The court added, however, after this concession, that it is better in all cases to allege a promise, saying: "It is always good pleading to state the legal effect of the contract whether it is written or oral."2 And in another case, where the action was brought

for the value of goods sold, etc., the same court, while passing upon the sufficiency of a complaint which was substantially in the form of an old common count without a request or a promise averred, used the following language: "In all these instances the law implies the promise from the facts stated, and our statute simply requires the statement of facts; and if upon these facts the law implies a promise, the complaint would be good.”1

§ 433. * 539. Case of Booth v. Farmers' and Mechanics' Bank (N. Y.). The question was discussed by the Supreme Court of New York in a very recent decision; and the importance of the case, and the positions taken in the opinion, make it necessary to quote from the judgment at some length. The complaint contained two counts. The second was for money had and received

to the plaintiff's use. ing a liability which might be considered as resulting from the tortious acts of the defendant, or might be regarded as arising from an implied contract, but omitting to aver any promise. The defendant demurred on the ground that two causes of action had been improperly joined, one on contract, and the other for a tort, an injury to property. The plaintiff, in answer to this position, claimed that he could elect under the circumstances to sue either for tort or on contract, and that the first cause of action should be treated as of the latter kind, so that there was no misjoinder. The court, however, entirely rejected this claim; and after stating that the ancient assumpsit and case were in many instances concurrent remedies for injuries to personal property; that in assumpsit the pleader must always have alleged that the defendant "undertook and promised," etc., and a breach of that promise, while in case the declaration was substantially the same except that the allegation of an undertaking and promise was omitted; that in the first count this averment is wanting, and "it is therefore a count in case,” — proceeded as follows: "If the plaintiff is right in supposing that the law implied a promise by the bank not to satisfy the judgment after

The first set out the facts in detail, stat

only an implied contract. A recent 175, that where one has received money Oregon case Waite v. Willis (1902), 42 Ore. 288, 70 Pac. 1034-holds that it is not necessary to allege a fictitious promise.

It was held in Bates-Farley Bank v. Dismukes (1899), 107 Ga. 212, 33 S. E.

which equitably belongs to another, an action lies in assumpsit, but such action is not founded upon the idea of a contract, but upon the idea of an obligation to refund, and no privity need be shown.]

1 Gwaltney v. Cannon, 31 Ind. 227.