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Assu M Psi

assumpsit, express, action, implied, contract, party and undertaking

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ASSU M PSI T (Lat. assumpsit, he has un dertaken). In Contracts. An undertaking, either express or implied, to perform a parol agreement. 1 Lilly, Reg. 132.

Express assumpsit is an undertaking made orally, by writing not under seal, or by mat ter 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.

The law presumes such dertaking to have been made, on t that every body is supposed t 'dertaken to do what is, in point of la just and right; 2 Burr. 1008; 8 C. B. 545 ; Leake, Contr. 75; Huffman v. Wyrick, 5 Ind. App. 183, 31 N. E. 823. Such an undertaking is never implied where the party has made an express prom ise; 2 Term 100; Kimball v. Tucker, 10 Mass. 192; nor ordinarily against the express declaration of the party to be charged, Jew ett v. Inhabitants of Somerset, 1 Greenl. (Me.) 125; Wheelock v. Freeman, 13 Pick. (Mass.) 165, 23 Am. Dec. 674 ; nor will it be implied unless there be a request or assent by the defendant shown; Webb v. Cole, 20 N. H. 490; though such request or assent may be inferred from the nature of the transaction; 1 fowl. & L. 984; Hawley v. Sage, 15 Conn. 52; Hall v. R. Co., 28 Vt. 401; Treasurer of City of Camden v. Mulford, 26 N. J. Law 49; or from the silent acquies cence of the defendant ; Doty v. Wilsvn,,,14 Johns. (N. Y.) 378; Bradley u43 See Jones 2 Blatchf. 343, Fed. Cas „, 200; gation ; 1 H. Bla contrary to fact on James v. Bixby, 11 Ma „,;,,, tb, q71 • J en over v. Turner, 14 Vie by one in the 'king's Inhabitants of Alna v. Plummer, 4 Greenl. (Me.) 258; Van Valkinburgh v. Watson, 13 Johns. (N. Y.) 480, 7 Am. Dec. 395; no prom ise to pay is implied from a mere use of per sonal property with the permission of the owner; Davis v. Breon, 1 Ariz. 240, 25 Pac. 537; In Practice. A form of action which lies for the recovery of damages for the non-per formance of a parol or simple contract. 7 Term 351; Ballard v. Walker, 3 Johns. Cas. (N. Y.) 60.

It differs from debt, since the amount claimed need not be liquidated (see DEBT), and from cove nant, since it does not require a contract under seal to support it. See COVENANT. See 4 Coke 91; 4 Burr. 1008 ; Carter v. Carter, 14 Pick. (Mass.) 428 ;

Newell v. Hill, 2 Metc. (Mass.) 181. Assumpsit is one of the class of actions called actions upon the case, and in the older books is called action upon the case upon assumpsit. Comyns; Dig.

It was a new variety of action on the case, framed, as it seems, as often on the writ of deceit as on that of trespass. Failure to per form one's agreements did not create a debt, but it was found to be a wrong in the nature of deceit for which there must be a remedy in damages. The first recorded case was Y. B. 2 Hen. IV, 3 pl. 9. It was only in 1596 (4 Co. Rep. 91 a) that it was conclusively de cided that assumpsit was admissible at the plaintiff's choice where debt would also lie; and it was still later before it was admitted that the substantial cause of action was the contract; Poll. Contr. 148. See Prof. James Barr Ames in 2 Harv. L. Rev. 1, 53 (3 Sel. Essays, Anglo-Amer. L. H. 259) ; Holmes, Corn. L. 284 ; 3 Holdsw. Hist. E. L. 329.

Special assumpsit is an action of assump sit brought upon an express contract or promise.

General assumfiglit is an action of assump sit brought upcin the promise or contract implied by law in certain cases. See 2 Sm. Lead. Cas. 14; Tr. & Ha. Pr. 1490.

The action should be brought by the party from whom the consideration moved; 3 B. & P. 149, n ; 4 B. & C. 664; Cabot v. Haskins, 3 Pick. (Mass.) 83, 92 ; or by the person for whose benefit it was paid; Hinkley v. Fowler, 15 Me. 285; against the party who made the undertaking. It lies for a corporation; 1 Campb. 466; and against it ; Bank of United States v. Dandridge, 12 Wheat. (U. S.) 68, 6 L. Ed. 552 ; City of San Antonio v. Lewis, 9 Tex. 69; Waring v. Catawba Co., 2 Bay (S. C.) 109; Overseers of Poor of North White hall Tp. v. Overseers of Poor of South Whitehall Tp., 3 S. & R. (Pa.) 117; but not in England formerly .(because a corporation could not contract except under its seal), un less by express authority of some legislative act, or in 'actions on negotiable paper ; 1 gev,..*.119; 4 Bingh. 77; but now cor tices, which tDualiable in many cases on con Co. Litt. 153. -91, and generally upon The assizes of darreili to the extent of the d'ancestre, novel disseisin,, E. 846 ; L. R. 10 possessory. They were trires (3d ed.) 693.

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