Sec 708

"When a defendant has actually received the consideration of an agreement by a voluntary performance of an act by the other party, upon his proposition and suggestion, such performance constitutes a consideration which will uphold the defendant's promise."6 Among the acts from which indebtedness is to be thus implied, the first to be noticed is that of employment of labor.7 " If I employ a person to transact any business for me or perform any work, the law implies that I undertook or assumed to pay him so much as his labor deserved. And if I neglect to make him amends, he has his remedy for this injury by bringing his action on the case upon this implied assumpsit. But this valuation of his trouble is submitted to the determination of a jury, who will assess such a sum in damages as they think he really merited. This is called assumpsit on a quantum meruit. - There is also an implied assumpsit on a quantum valebat, which is very similar to the former, being only where one takes up goods or wares of a tradesman without expressly agreeing for the price. There the law concludes that both parties did intentionally agree that the real value of the goods shall be paid; and an action on the case may be brought accordingly, if the vendee refuses to pay that value."1 The same principle applies where one party pays money for another party at the latter's request; repayment being thereby impliedly promised.2 There must, however, be a contractual relation, express or implied, between the parties.3 Thus the employment of a husband on a farm does not involve an implied employment of his wife to do the housework.4 Generally, in all cases where goods or labor are ordered, a money indebtedness is implied to the party to whom the price is payable from the party who has had the benefit of the goods or labor.5 For this purpose the plaintiff is entitled to sue on an indebitatus count, as for a claim for money payable "for goods sold and delivered," or "for goods bargained and sold," or "for work and labor done;" " reserving the particular circumstances of the debt, if disputed, to be given in evidence."6 " The principle on which the cases have been decided, as to the proper mode of declaring where the original contract has been executory, but the period of credit has expired or the condition has been performed, is not that the law alters the mode of declaring on the original contract, and states it not according to the fact, but that it conclusively infers that simple contract to pay the price for goods sold and delivered, which would arise upon the facts of a sale and delivery without any special circumstances accompanying them. He who seeks to disturb that inference must not content himself with merely showing conditions or other special provisions forming part of the contract at the time of its being entered into; he must show them in existence and operation at the time of the action brought; if not, they may be struck out of the consideration, and the contract treated as if originally simple, unconditional, and executed."1 But mere reception of goods does not establish a liability to pay for them.2 - What has been said applies with equal force to contracts for service. - As has been already seen,3 when work of a character for which it is the usual practice to pay as a matter of business, is done for a person who stands by and receives the benefit, then a proposal and acceptance will be inferred.* "If the plaintiff's services were worthless, or were of no value, he is not entitled to recover anything, but if they were of value, he is entitled to recover that value."1 But there must be a definite acceptance to bind; mere non-refusal does not suffice.2 And to establish special remuneration, a special contract must be proved. Thus, from the mere fact of employing an attorney, a client cannot be held bound to pay such attorney a special retaining fee.3 - Contracts of bailment stand on the same footing. - To sustain an action for use and occupation, "it is not necessary for the plaintiff to prove an express contract with the tenant when he took possession, or any particular reservation of rent, nor that the tenant has once paid rent, for an undertaking to that effect will be implied in all cases where a permissive holding is established."* "When the defendant has entered and occupied by permission of the From employment of labor, sale of goods, and bailment.

1 Met. on Con. 6; Whiting V. Sullivan, 7 Mass. 107; Massachusetts General Hosp. V. Fairbanks, 129 Mass. 78.

2 Lord, J., Earle V. Coburn, 130 Mass. 596, citing Whiting V. Sullivan, 7 Mass. 107.

3 Infra, sec 711.

4 1 Ch. on Cont. 11th Am. ed. 89; Cutter V. Powell, 6 T. R. 320; Read V. Rann, 10 B. & C. 438; Van Ness V. Washington, 4 Pet. 232; Gavinzel V. Crump, 22 Wall. 308; Brown V. Spofford, 95 U. S. 474; Weston V. Davis, 24 Me. 374; Worthen V. Stevens, 4 Mass. 448.

5 Infra, sec 941.

6 Andrews, J., Marie V. Garrison, 83 N. Y. 27; citing Sands V. Crooke, 46 N. Y. 564; Morton V. Burn, 7 Ad. & El. 25; Storm V. U. States, 94 U. S. 83. That a contract may be by conduct, see sec 86-7.

7 Swires V. Parsons, 5 W. & S. 557; Neil V. Gilmore, 79 Penn. St. 421.

1 3 Black. Com. 162, adopted by Leake, 2d ed. 73; Lampleigh V. Brath-wait, Hobart, 105; 1 Smith L. C. 7th Am. ed. 280; Jewry V. Busk, 5 Taunt. 302; Allen V. Woodward, 2 Fost. N. H. 544; Downs V. Marsh, 29 Conn. 409; Comstock V. Smith, 7 Johns. 87; Oatfield V. Waring, 14 Johns. 188.

2 Infra, sec 757 et seq.; Brittain V. Lloyd, 14 M. & W. 762; Lewis V. Campbell, 8 C. B. 541; infra, sec 757. As to promises on executed considerations, see supra, sec 514. As contract implied from acceptance of service or goods, see supra, sec 7. As to partial failure of consideration, see supra, sec 520; infra, sec 745 et seq.; and see Leach V. French, 69 Me. 389.

3 Infra, sec 784 et seq.

4 Lyle V. Gray, 47 Iowa, 153.

5 Supra, sec 6; Phillips V. Jones, 1 A. & E. 333; Goslin V. Hodson, 24 Vt. 140; James V. Bixby, 11 Mass. 34; Day V. Caton, 119 Mass. 513; Peter V. Steel, 3 Yeates, 250; Moreland V. Davidson, 71 Penn. St. 371; Dougherty V. Whitehead, 31 Mo. 255.

6 Leake, 2d ed. 63; citing 2 Wms. Saun. 349 b; Streeter V. Horlock, 1 Bing. 34, 37; Stone V. Rogers, 2 M. & W. 443; see Hastings V. Pepper, 11 Pick. 41; Badger V. Titcomb, 15 Pick. 414; Knight V. Worsted Co., 2 Cush. 286; Maghee V. R. R., 45 N. Y. 514; Humphreys V. Reed, 6 Whart. 435.

1 Per cur. in Beverley V. Lincoln, 6 A. & E. 836; cited in Leake. 2d ed. 64. Mr. Leake, also, cites Clark V. Bulmer, 11 M. & W. 243, where the court said: "Whenever a simple contract is executed, and terminates in a debt which it is the duty of the defendant to pay instanter, it is no doubt the subject of an indebitatus count; but the executed contract must be described properly;" and see Tripp V. Armitage, 4 M. & W. 687; and for other cases, supra, sec 6.

2 Supra, sec 22. "In Boston Ice Co. V. Potter, 123 Mass. 28, the court refused to hold the defendant to an implied promise to pay for ice which he had received and consumed during a year or more; and this upon the ground that a promise will not necessarily be implied from the mere fact of receiving a benefit." Lord, J., Earle V. Coburn, 130 Mass. 597. As to rescinded sales, see supra, sec 282 et seq.; infra, sec 752.

3 Supra, sec 7.

4 Paynter V. Williams, 1 C. & M. 810; Lucas V. Godwin, 3 Bing. N. C. 737; Phillips V. Jones, 1 A. & E. 333; Smith V. Chance, 2 B. & Ald. 755; Pegge V. Lampeter Union, L. R. 9 C. P. 373; Abbot V. Hermon, 7 Greenl. 121; Derby V. Johnson, 21 Vt. 17; Farmington Academy V. Allen, 14 Mass. 172; Lowe V. Pimental, 115 Mass. 44; Day V. Caton, 119 Mass. 513; Clark V. Marsiglie, 1 Denio, 317; Hall V. Rupley, 10 Barr, 231; Stropes V. Board, 72 Ind. 42; Smith V. Morse, 20 La. An. 220.

1 Cole V. Clarke, 3 Wis. 323; Jackson V. Cleveland, 15 Wis. 108; Mc-Cormick V. Ketchum, 48 Wis. 646.

2 Supra, sec 22.

3 McClellan V. Hayford, Sup. Ct. Me. 1881. In this case, Burrows, J., said: "The jury must have understood from this that proof of the employment of the plaintiff as counsel would of itself, as matter of law, raise an implied promise on the part of the defendant to pay any reasonable sum which the plaintiff might charge as a retaining fee in all the contested cases, besides making compensation for all the services actually rendered; that something was due and recoverable as and for a retaining fee, in addition to the pay for services and disbursements in each contested case, and that the only question for them was, whether the sum charged was a reasonable sum to charge for a retainer. In support of the instructions, the plaintiff relies upon the cases of Aldrich V. Brown, 103 Mass. 527; Perry V. Lord, 111 ib. 504; Pierce V. Parker, 121 ib. 403; and Eggleston V. Boardman, 37 Mich. 14. But neither of these cases nor all of them combined can be regarded as authority for the instruction here complained of. The circumstances under which a contract to pay a counsellor at law for services rendered and expenses incurred may be inferred, and the character and effect of the contract, do not essentially differ from those which pertain to and regulate contracts for other professional services, skilled labor of any kind, and, in fact, any kind of service in which the amount of the compensation necessarily depends largely upon the circumstances under which the service is rendered, its nature, and the charges that are usual and customary for like services. Hence, in the absence of a special contract to pay these retainers, the plaintiff must prove enough to show that there was an implied promise on the part of the defendant to pay them.".

As will be hereafter seen, there can be no recovery for services rendered as a matter of courtesy or of family service. Infra, sec 719.

4 Taylor, Land. and Ten. sec 655, adopted by Wallace, J., Cobb V. Kidd, 12 Rep. 769.

plaintiff without any express contract, the law implies a promise on his part to make compensation, or pay a reasonable rent for his occupation."1 - A contract, however, as we have just seen, will not be implied when there is an express contract covering the same subject matter between the parties. Nor will a contract be implied when the alleged promisee has entered into contractual relations with a third party for payment. - "If A. contract with B. to furnish board at his expense to fifty men in his employ, and B. furnishes it, there is no implied contract on the part of the boarders to pay each for his own board. And this, not because they are employed by A., but because the board was furnished on A.'s promise to pay for it."2