ASSUMPSIT (Lat. assumere, to assume, to undertake ; (.tsumpsit, he has undertaken).
In Contracts. An undertaking, either express or implied, to perform a parol agree ment. 1 Lilly, Reg. 132.
Express assumpsit is an undertaking made orally by writing not under seal, or by matter of record, to perform an act or to pay a sum of money to another.
Implied assumpsit is an undertaking pre sumed in law to have been made by a party, from his conduct, although he has not made any express promise.
2. The law presumes such an undertaking to have been made, on the ground that every body is supposed to have undertaken to do what is, in point of law, just and right. Such an undertaking is never implied where the party has made'an express one, 2 Term, 100; 10 Mass. 192; 20 Am. Jur. 7 ; nor ordinarily against the express declaration of the party to be charged, 1 Me. 125 ; 13 Pick. Mass. 165 ; nor will it be implied unless there be a request or assent by the defendant shown, 20 N. H. 490 ; 1 Greenleaf, Ev. 107, though such request or assent may be inferred from the naturli of the transaction, 1 Dowl. & L. 984 ; 15 Conn. 52 ; 28 Vt. 401; 2 Dutch. N. J. 49, or from the silent acquiescence of the defend ant, 22 Am. Jur. 2-11 ; Mctc. Yelv. 41, n. ; 14 Johns. N. Y. 378 ; 2 Blatchf. C. C. 343, or even contrary to fact on the ground of legal obligation. 1 H. Blackst. 90 ; 3 Campb. 298; 6 Mod. 171 ; 14 Mass. 227 ; 10 Pick. Mass. 156 ; 4 Me. 258 ; 20 Am. Jur. 9 ; 22 id. 2 ; 13 Johns. N. Y. 480.
3. In Practice. A form of action which lies for the recovery of damages for the non performance of a parol or simple contract. 7 Term, 351; 3 Johns. Cas. N. Y. 60.
It differs from debt, since the amount claimed need notbe liquidated (see DEBT), and fronaceresant, since it does not require a contract under seal to support it. See COVENANT. See 4 Coke, 91; 4 Burr. 1008; 14 Pick. 428 ; 2 Mete. 181. Assumpsit is one of the class of actions called actions upon the case, and in the older hooks is called action upon the case npou assumpsit. Comyns, Dig.
Special assumpsit is an action of assumpsit brought upon an express contract or promise.
General assumpsit is an action of assumpait brought upon the promise or contract implied by law in certain cases. See 2 Smith, Lead. Cas. 5th Am. ed. 14.
4. The action should be brought by the party from whom the consideration moved, 1 Ventr. 318 ; 3 Bos. & P. 149, n. ; 14 East, 582 ;
Metc. Yelv. 1, 25, n.; 4 Barnew. & C. 664; 17 Mass. 404, 575 ; 3 Pick. Mass. 83, 92 ; 8 Johns. 58 ; 13 id. 497 ; 1 Pet. C. C. 169; 22 Am. Jur. 1-19, or by the person for whose benefit it was paid, 15 Me. 285, 443 ; 1 Rich. So. C. 268 ; 5 Blackf. Ind. 179; 17 Ala. 333, against the party who made the undertaking ; suing the principal to recall money paid to the agent. See 4 Burr. 1984 ; 1 Sumn. C. C. 277, 317. It lies for a corporation, 2 Lev. 252 ; 1 Campb. 466 ; and against it, in the United States, 7 Cranch, 9 Pet. 541 ; 3 Serg. & R. Penn. 117; 4 id. 16 ; 12 Johns. N. Y. 231; 14 id. 118; 2 Bay, So. C. 109 ; 1 D. Chipm. Vt. 371, 456 ; 1 Ark. 180 ; 10 Mass. 397 ; 3 Heist. N. J. 182 ; 3 Serg. & R. Penn. 117 ; 4 id. 16 ; but not in England, unless by express authority of some legislative act. 1 Chitty, Plead. 98.
A promise or undeitaking on the part of the either expressly made by him or implied by the law from his actions, con stitutes the gist of the action. A sufficient consideration for the promise must be averred and shown, 21 Am. Jur. 258, 283 ; though it may be implied by the law, 7 Johns. 29, 321; 14 Pick. Mass. 210; 21 Am. Jur. 258, 283; as in case of negotiable promissory notes and bills, where a consideration is presumed to exist till its absence is shown. 6 Vt. 165; Story, Prom. Notes.
The action lies for— • 5. Money had and received to the plaintiff's use, including all cases where one has money, or that which the parties have agreed to treat as money, 1 Greenleaf, Ev. 117; 2 N. H. 333 ; 6 Cow. N. Y. 297 ; 8 Gill & J. Md. 333, in his hands, which in equity and good con science he is hound to pay over ; including bank-notes, 13 East, 20, 130 ; 17 Magi 560 ; 7 Cow. N. Y. 662 ; 32 Ala. N. s. 523 ;pro missory notes, 3 Mass. 405 ; 9 Pick. Mass. 293; 16 Me. 285; 7 Johns. N. Y. 132; 11 N. H. 218; 6 Blackf. Ind. 378; notes pay able in specific articles, 7 Wend. N. Y. 311; and some kinds of evidences of debt, 3 Campb. 199 ; 8 Wend. N. Y. 641; 17 Mass. 560 ; 4 Pick, Mass. 71; but not goods, ex cept under special agreement, 2 Burr. 2589; 1 East, 1 ; 7 Serg. Penn. 246 ; 8 Term, 687 ; 3 Bos. &.P. 559 ; 1 Younge & J. Exch. 380 ; 1 Dougl. 117 ; whether delivered to the defendant for a particular purpose to which be refuses to apply it, 14 East, 590, n.; 3 Price, Exch. 68 ; 3 Day, Conn. 252 ; 4 Cow.