The action may be brought for a sum spe cified in the promise of the defendant, or for the definite amount of money ascertained by computation to be due, or for as much as the services, etc. were worth (called a quantum meruit), or for the value of the goods, etc. (called a quantum valebant).
10. The form of the action, whether gene ral or speCial, depends upon the nature of the undertaking of the parties, whether it be express or implied, and upon other circum stances. In many cases where there has been an express agreement between the parties, the plaintiff may neglect the special contract and sue in general assumpsit. He may do this : first, where the contract is ex ecuted, Fitzg. 303 ; 2 Dougl. 651 ; 4 Bos. & P. 355 ; 1 Bingh. 34; 5 Barnew. & C. 628 ; 7 Johns. N. Y. 132 ; 18 id. 451 ; 10 Mass. 287; 19 Pick. Mass. 496 ; 8 Mete. Mass. 16 ; 11 Wheat. 237 ; 3 T. B. Monr. Ky. 405 ; 7 Vt. 228 ; 5 Harr. & G. Md. 45 ; 3 M'Cord, Sc. C. 421; 18 Ga. 364, and is for the pay ment of money, 2 Munf. Va. 344; 6 id. 506; 1 J. J. Marsh. Ky. 394 ; 3 T. B. Monr. Ky. 405; 1 Bibb, Ky. 395 ; 4 Gray, Mass. 292 ; though, if a time be fixed for its payment, not until the expiration of that time, 1 Stark. 229: second, where the contract, though only partially executed, has been abandoned by mutual consent, 7 Term, 181 ; 2 East, 195 ; 12 Johns. N. Y. 274 ; 16 Wend. N. Y. 622 ; 12 id. 334 ; 15 id. 87; 16 Me. 283; 11 Rich. So. C. 42 ; 7 Cal. 150; see 29 Penn. St. 82, or extinguished and rescinded by some act of the defendant, 11 Me. 317 ; 2 Blackf. Ind. 167 ; 2 Speers, So. C. 148 ; 20 N. IL 457; see 4 Cranch, 239 : third, where that which the plaintiff has done has been performed under a special agreement, but not in the time or manner agreed, but yet has been beneficial to the defendant and has been ac cepted and enjoyed by him. 1 Bingh. 34 ; 13 Johns. N. Y. 94; 4 Cow. N. Y. 564 ; 14 Mass.
282 ; 1 Sandf. N. Y. 206 ; 5 Gill & J. Md. 240 ; 8 Yerg. Tenn. 411 ; 12 Vt. 625 ; 7 Mo. 530 ; 23 id. 228 ' • 3 Ind. 59, 72 ; 5 Mich. 449 ; 3 Iowa, 90 ; 3 Wise. 323. See 1 Green leaf, Ev. 104 ; 2 Smith, Lead. Cas. 14, 15 ; 31 Penn. St. 218.
A surety who has paid money for his prin eipal may recover upon the common counts, though he holds a special agreement of in demnity from the principal. 1 Pick. Mass. 118. But in general, except as herein stated, if there be a special agreement, special assump sit must be brought thereon. 14 B. Monr. Ky. 177 ; 22 Barb. N. Y. 239 ; 2 Wisc. 34 ; 14 Tex. 414.
1.1.. The declaration should state the con tract in terms, in case of a special assumpsit; but, in general, assumpsit contains only a general recital of a consideration, promise, and breach. Several of the common counts are frequently used to describe the same cause of action. Damages should be laid in a suf ficient amount to cover the real amount of the claims. See 4 Pick. Mass. 194 ; 2 Cons. So. C. 339 ; 4 Munf. Va. 95 ; 5 id. 23 ; 2 N. H.289 ; 1 Ill. 286 ; 4 Johns. N. Y. 280 ; 6 Cow. N .Y 151 ; 1 Hall, N. Y. 201 ; 5 Serg. & R. Penn. 519 ; 11 id. 27 ; 6 Conn. 176 ; 9 id. 508 ; 2 Bibb, Ky. 429.
Non assumpsit is the usual plea under which the defendant may give in evidence most 'natters of defence. Comyns, Dig.Pleader (2 G 1). Where there are several defendants, they cannot plead the general issue severally, 6 Mass. 444 ; nor the same plea in bar seve rally. 13 Mass. 152. The plea of not guilty is defective, but is cured by verdict. 8 Serg. & R. Penn. 541 ; 4 Call. Va. 451. See, gene rally, Bacon, Abr.; Comyns, Dig. Action upon the case upon assumpsit; Dane, Abr. ; Viner, Abr.; 1 Chitty, Plead. ; Lawes, Assump. ; 1 Greenleaf, Ev. ; Bouvier, Inst. Index ; COVE NANT DEBT ; JUDGMENT. •