Assumpsit

Commentary on Assumpsit

“It was early known as 'trespass on the case upon promises,' but in time came to be designated assumpsit (he assumed or promised), and lies for damages for breach of all contracts, parol or simple, whether written or verbal, express or implied.” Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 9-10 (2d ed. 1899). “In its origin an action of tort, [assumpsit] was soon transformed into an action of contract, becoming afterwards a remedy where there was neither tort nor contract. Based at first only upon an express promise, it was afterwards supported upon an implied promise, and even upon a ficti? tious promise. Introduced as a special manifestation of the action on the case, it soon acquired the dignity of a distinct form of action, which superseded Debt, became concurrent with Account, with Case upon a bailment, a warranty, and bills of exchange, and competed with Equity in the case of the essentially equitable quasi-contracts growing out of the principle of unjust enrichment. Surely, it would be hard to find a better illustration of the flexibility and power of self? development of the Common Law:' James Barr Ames, “The History of Assumpsit,” in 3 Select Essays in Anglo-American Legal History 298 (1909).

General assumpsit

Commentary on this subject matter: “General assumpsit is brought for breach of a fictitious or implied promise raised by law from a debt founded upon an executed consideration. The basis of the action is the promise implied by law from the performance of the consideration. or from a debt or legal duty resting upon the defendant.” Benjamin J. Shipman, Handbook of Common? Law Pleading § 59, at 153 (Henry Winthrop Ballantine ed., 3d ed. 1923). “[The word 'assumpsit' suggest[s] the making of a promise. While that is true in the case of the action of special assumpsit, the promise alleged in the action of general assumpsit was only a fiction. Accordingly in the latter action, the word 'assumpsit' no more means that an obligation exists as the result of making a contract, than that a contract is involved because the obligation is described as quasi-contractual.” Charles Herman Kinnane, A First Book on Anglo-American Law 633-34 (2d ed. 1952).

indebitatus assumpsit

Commentary on this subject matter: “[I]f I verbally agree to pay a man a certain price for a certain parcel of goods, and fail in the performance, an action of debt lies against me; for this is a determinate contract: but if I agree for no settled price, I am not liable to an action of debt, but a special action on the case, accord? ing to the nature of my contract. And indeed actions of debt are now seldom brought but upon special contracts under seal …. [The plaintiff must recover the whole debt he claims, or nothing at all. For the debt is one single cause of action, fixed and determined; and which therefore, if the proof varies from the claim, cannot be looked upon as the same … action of debt …. But in an action on the case, on what is called an indebitatus assumpsit, which is not brought to compel a specific performance of the contract, but to recover damages for its non-performance, the implied assumpsit, and consequently the damages for the breach of it, are in their nature indeterminate; and will therefore adapt and proportion themselves to the truth of the case which shall be proved, without being confined to the precise demand stated in the declaration.” 3 William Blackstone, Commonalties on the Laws of England 154 (1768).

special assumpsit

Commentary on this subject matter: “Special assumpsit lies for the recovery of damages for the breach of simple contract, either express or implied in fact. The term 'special contract' is often used to denote an express ~r explicit contract as contrasted with a promise implied in law.” Benjamin J. Shipman, Handbook of Common ?Law Pleading § 58, at 148 (Henry Winthrop Ballantine ed., 3d ed. 1923). “From the allegations concerning the 'assumpsit,' a new action which split off from the action on the case came to be known as the action of assumpsit. Since, however, the plaintiff had to allege and prove a specific or special promise, in order to get a judgment, the action came to be known as the action of 'special assumpsit.' When the special promise came to be regarded as the basis of the action, the action came to be regarded as a contract action, rather than one based on unclassified 'wrongs.'” Charles Herman Kinnane, A First Book on Anglo-American Law 633-34 (2d ed. 1952).

Assumpsit

In the Past

An undertaking either express or implied, to perform a parol agreement. 1 Lilly's Reg. 132.

Developments

An express assumpsit is where one promises verbally or in writing, not under seal or by matter of record, to perform an act or to pa a sum of money to another.

Details

An implied assumpsit is where one has not made any formal promise to do an act or to pay a sum of money to another, but who is presumed from his conduct to have assumed to do what is in point of law just and right; for, 1st, it is to be presumed that no one wishs to enrich himself at the expense of another; 2d, it is a rule that The person who wishs the antecedent, must abide by the consequent; as, if I receive a loaf of bread or a newspaper daily sent to my house without orders and I use it without objection, I am presumed to have accepted the terms upon which the person sending it had in contemplation, that I should pay a fair price for it; 3d, it is also a rule that every one is presumed to assent to what is useful to him. See Assent [1]

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Notes and References

1. Partialy, this information about assumpsit is based on the Bouvier's Law Dictionary, 1848 edition. There is a list of terms of the Bouvier's Law Dictionary, including assumpsit.

See Also

Assumpsit

In the Past

Remedies and Practice

(For remedies see more about this popular legal topic in the U.S. encyclopedia). A form of action which may be defined to be an action for the recovery of damages (see more about this popular legal topic in the U.S. encyclopedia) for the non-performance of, a parol or simple contract; or, in other words, a contract not under seal, nor of record; circumstances which distinguish this remedy from others. 7 T. R. 351; 3 Johns. Cas. 60. This action differs from the action of debt; for, in legal consideration, that is for the recovery of a debt eo nomine and in numero and may be upon a deed as well as upon any other contract. 1 h. Bl. 554; B. N. P. 167. If differs from covenant, which, though brought for the recovery of damages (see more about this popular legal topic in the U.S. encyclopedia), can only be supported upon a contract under seal. See Covenant.

Developments

It will be proper to consider this subject with reference, 1, to the contract upon which this action may be sustained; 2, the declaration 3, the plea; 4, the judgment.

Details

Assumpsit lies to recover damages (see more about this popular legal topic in the U.S. encyclopedia) for the breach of all parol or simple contracts (see more about this popular legal topic in the U.S. encyclopedia), whether written or not written express or implied; for the payment of money or for the performance or omission of any other act. For example, to recover, money lent, paid or had and received, to the use of the plaintiff; and in some cases, where money has been received by the defendant, as a result of some tortious act to the plaintiff's property (see more about this popular legal topic in the U.S. encyclopedia), the plaintiff may waive the tort (see more about this popular legal topic in the U.S. encyclopedia) and sue the defendant in assumpsit. 5 Pick. 285; 1 J. J. Marsh. 543 3 Watts, R. 277; 4 Binn. 374; 3 Dana, R. 552; 1 N. H. Rep. 151; 12 Pick. 120 4 Call. R. 461; 4 Pick. 452. It is the proper remedy for work and. labor done and services makeed 1 Gill, 95; 8 S. & M. 397 2 Gilman, 1 3 Yeates's Reports, Pennsylvania, 250 9 Ala. 788 but such work, labor or services, must be makeed at the ask, express or implied, of the defendant; 2 Rep. Cons. Ct. 848; 1 M'Cord, 22; 20 John. 28 11 Mass. 37; 14 Mass. 176; 5 Monr. 513 1 Murph. 181; for goods sold and delivered; 6 J. J. Marsh. 441; 12 Pick. 120; 3 N. H. Rep. 384; 1 Mis. 430; for a breach of promise of marriage. 3 Mass. 73 2 Overton, 233 2 P. S. R. 80. Assumpsit lies to recover the buy money for land sold; 14 Johns. R. 210; 14 Johns. R. 162; 20 Johns. R. 838 3 M'Cord, R. 421; and it lies, specially, upon wagers; 2 Chit. PI. 114; feigned issues; 2 Chit. PI. 116; upon foreign judgments; 8 Mass. 273; Dougl. 1; 3 East, 221; 11 East, 124; 3 T. R. 493; 5 Johns. R. 132. But it will not lie on a judgment geted in a sister state. 1 Bibb, 361 19 Johns. 162; 3 Fairf. 94; 2 Rawle, 431. Assumpsit is the proper remedy upon an account stated. Bac. Ab. Assumpsit, A. It will lie for a corporation, 2 Lev. 252; 1 Camp. 466. In England (see more about this legal system) it does not lie against a corporation, unless by express authority of some legislative act; 1 Chit. PI. 98; but in the United States of America it lies against a corporation aggregate, on an express or implied promise, in the same way as against an individual. 7 Cranch's Reports (U. S. Supreme Court) 297 9 Pet. 541; 3 S. & R. 117 4 S. & R. 16 12 Johns. 231; 14 Johns. 118; 2 Bay, 109 1 Chipm. 371, 456; 1 Aik. 180 10 Mass, 397. But see 3 Marsh. 1; 3 Dall. 496.

Other Aspects

The declaration must invariably show the consideration of the contract (see more about this popular legal topic in the U.S. encyclopedia), the contract itself and the breach of it; Bac. Ab. h. t. F 5 Mass. 98; but in a declaration on a negotiable instrument under the statute of Anne, it is not requisite to, allege any consideration; 2 Leigh, R. 198; and on a note expressed to have been given for value received, it is not necessary to aver a special consideration. 7 Johns. 321. See Mass. 97. The gist of this action is the promise and it must be averred. 2 Wash. 187 2 N. H. Rep. 289 Hardin, 225. damages (see more about this popular legal topic in the U.S. encyclopedia) should be laid in a enough amount to cover the real amount of the claim. See 4 Pick. 497; 2 Rep. Const. Ct. 339; 4 Munf. 95; 5 Munf. 23; 2 N. H. Rep. 289; 1 Breese, 286; 1 Hall, 201; 4 Johns. 280; 11 S. & R. 27; 5 S. & R. 519 6 Conn. 176; 9 Conn. 508; 1 N. & M. 342; 6 Cowen, 151; 2 Bibb, 429; 3 Caines, 286.

More Information

The usual plea is non-assumpsit, (see this concept in the corresponding entry on this reference) under which the defendant may give in evidence most matters of defence. Comyn's Digest (A digest of the laws of England, 1822) Pleader, 2 G 1. When there are several defendants they cannot plead the general issue severally; 6 Mass. 444; nor the same plea in bar, severally. 13 Mass. 152. The plea of not guilty, in an action of assumpsit, is cured by verdict. 8 S. & R. 541; 4 Call. 451. See 1 Marsh, 602; 17 Mass. 623. 2 Greenl. 362; Minor, 254 Bouv. Inst. Index, h. t.

Other Issues

Judgment. Vide Judgment in Assumpsit. Vide Bac. Ab. h. t.; Comyn's Digest (A digest of the laws of England, 1822) Action upon the Case upon Assumpsit; Dane's Ab. Index, h. t.; Viner's Ab. h. t.; 1 Chit. Pi. h. t.; Petersd. h. t.; Lawes PI. in Assumpsit the various Digests, h. t. Actions; Covenant; Debt; Indebitatus assumpsit; Padum Constitutiae pecuniae. [1]

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Notes and References

1. Partialy, this information about assumpsit is based on the Bouvier's Law Dictionary, 1848 edition. There is a list of terms of the Bouvier's Law Dictionary, including assumpsit.

See Also

Assumpsit

There is an additional definition in the world law dictionary.

Resources

See Also

• Express assumpsit