G, And in many other cases, as for a breach promise of marriage ; Conn v. Wilson, 2 d'anitgc,Pnoverifti§seikkk Dee. 663; to re possessory. They were trill, cover the purchase-money for land sold; Vel ie v. Myers, 14 Johns. (N. Y.) 162 ; Shephard v. Little, id. 210; Wood v. Gee, 3 McCord (S. C.) 421; and, specially, upon wagers; 2 Chit. PL 114; feigned issues ; 2 Chit. Pl. 116; upon foreign judgmentg ; 3 Term 493; Oysted v. Shed, 8 Mass. 273; Hubbell v. Coudrey, 5 Johns. (N. Y.) 132 ; but not on a judgment obtained in a sister state; Garland v. Tucker, 1 Bibb (Ky.) 361; Andrews v. Montgomery, 19 Johns. (N. Y.) 162, 10 Am. Dec. 213; Boston India Rubber Factory v. Hoit, 14 Vt. 92; money due under an award; Kingsley v. Bill, 9 Mass. 198 ; where the de fendant has obtained possession of the plain tiff's property by a tort for which trespass or case would lie; Bigelow v. Jones, 10 Pick. (Mass.) 161; Budd v. Hiler, 27 N. J. L. 43; Hutton v. Wetherald, 5 Harr. (Del.) 38; Coop er v. Berry, 21 Ga. 526, 68 Am. Dec. 468; or, having rightful possession, has tortiously sold the property ; Foster v. Mfg. Co., 12 Pick. (Mass.) 452 ; Gilmore v. Wilbur, 12 Pick. (Mass.) 120, 22 Am. Dec.. 410; Pritchard v. Ford, 1 J. J. Marsh. (Ky.) 543 ; Willet v. Willet, 3 Watts (Pa.) 277 ; Sanders v. Ham ilton, 3 Dana (Ky.) 552; Chauncy v. Yea ton, 1 N. H. 151; King v. McDaniel, 4 Call (Va.) 451; Stockett v. Watkins' Adm'rs, 2 Gill & J. (Md.) 326, 20 Am. Dec. 438; or convert. ed it to his own use ; 3 M. & S. 191; Miller v. Miller, 7 Pick. (Mass.) 133, 19 Am. Dec. 264 ; Pike v. Bright, 29 Ala. 332; Emerson v. 1VIeNamara, 41 Me. 565 ; Janes v. Buzzard, 1 Hempst. 240, Fed. Cas. No. 7,206a ; Als brock v. Hathaway, 3 Sneed (Tenn.) 454; Goodenow v. Snyder, 3 G. Greene (Ia.) 599; or, at the suit of an attaching creditor, where a sheriff pays money to subsequent lienor by order of court, which order is sub sequently reversed ; Haebler v. Myers, 132 N. Y. 363, 30 N. E. 963, 15 L. R. A. 588, 28 Ain. St. Rep. 589; or where one purchases a bond relying on the seller's recommendation that it is good, when in fact it is worthless; Rip ley v. Case, 86 Mich. 261, 49 N. W. 46.
The action may be brought for a sum sped fied 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). The value of services performed under a contract void by the statute of frauds is recoverable on quan tum meruit; Lapham v. Osborne, 20 Nev. 168, 18 Pac. 881; Wonsettler v. Lee, 40 Kan. 367, 19 Pac. 862; a city is liable for water supplied after termination of the contract; Wilson v. City of Charlotte, 110 N. C. 449, 14 S. E. 961; one hired to do work, but who is wrongfully stopped, may recover on quay tum meruit what the labor is worth, regard less of its value to the other party ; Mooney v. Iron Co., 82 Mich. 263, 46 N. W. 376.
The of the action, whether general 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 par ties, the plaintiff may neglect the special contract and sue in general assumpsit. He May do this: first, where the contract is exe cuted ; 5 B. & C. 628 ; Robertson v. Lynch, 18 Johns. (N. Y.) 451; Baker v. Corey, 19 Pick. (Mass.) 496 ; Perkins v. Hart, 11 Wheat. (U. S.) 237, 6 L. Ed. 463 ;. Cochran v. Tatum,
3 T. B. Monr. (Ky.) 405 ; Coursey v. Coving ton, 5 Harr. & J. Md.) 45; Wood v. Gee, 3 McCord (S. C.) 421; Hancock v. Ross, 18 Ga. 364; and is for payment of money; Brooks v. Scott's 'Ex'r, 2 Munf. (Va.) 344 ; Cochran v. Tatum, 1 J. J. Marsh. (Ky.) 394; Cochran v. Tatum, 3 T. B. Monr. (Ky.) 405 ; Morse v. Potter, 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 par tially executed, has been abandoned by mu tual consent ; 7 Term 181; Mead v. Degloy er, 16 Wend. (N. Y.) 632; Tebbetts v. Has kins, 16 Me. 283; Adams v. Pugh, 7 Cal. 150; or extinguished and rescinded by some act of the defendant ; Hoagland v. Moore, 2 Blackf. (Ind.) 167; Jenkins v. Thompson, 20 N. H. 457; 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 accepted and en joyed by him ; 1 Bingh. 34 ; Taft v. Inhab itants of Montague, 14 Mass. 282, 7 Am. Dec. 215; Watchman v. Crook, 5 Gill & J. (Md.) 240; McKinney v. Springer, 3 Ind. 59, 54 Am. Dec. 470 ; Epperly v. Bailey, 3 Ind. 72 ; Allen v. McKibbin, 5 Mich. 449 ; Cole v. Clarke, 3 Wis. 323 ; see 2 Sm. Lead. Cas. 14; Miller v. Phillips, 31 Pa. 218.
A surety who has paid money for his prin cipal may recover upon the common counts, though he holds a special agreement of in demnity from the principal; Gibbs v. Bry ant, 1 Pick. (Mass.) 118. But in general, ex cept as herein stated, if there be a special agreement, special assumpsit must be brought thereon ; Sherman v. R. Co., 22 Barb. (N. Y.) 239; Maynard v. Tidball, 2 Wis. 34.
The declaration should state the contract in terms, in case of a special assumpsit ; bnt, in general, assumpsit contains only a general recital of 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 suffi cient amount to cover the amount of the claim ; see 2 Const. S. C. 339; Beverley v. Holmes, 4 Munf. (Va.) 95; Benden v. Man ning, 2 N. H. 289'; Bailey v. Freeman, 4 Johns. (N. Y.) 280 ; Hendrick v. Seely, 6 Conn. 176 ; People's Bank v. Adams, 43 Vt. 195; Davisson v. Ford, 23 W. Va. 617.
Non assumpsit is the usual plea, under which the defendant may give in evidence most matters of defence ; Com. Dig. Pleader (2 G, 1). Under that plea it may be shown that no such promise as alleged was made or is implied, or that the promise if made was void ; but defences which from their nature admit a promise and set up a subse qtent performance or avoidance as, e. g. pay ment, set off, statute of limitations, should be pleaded specially, in the absence of a stat utory definition of the effect of the general plea, which exists in many states. Where there are several defendants, they cannot plead the general issue severally ; Meagher v. Bachelder, 6 Mass. 444 ; nor the same plea in bar severally ; Ward v. Johnson, 13 Mass. 152. The plea of not guilty is defective, but is cured by verdict; King v. McDaniel, 4 Call (Va.) 451.
See, generally, Bacon, Abr. ; Comyns, Dig., Action upon the case upon assumpsit; Dane, Abr.; Viner, Abr.; 1 Chit. Pl.; Lawes, Assump.; 1 Greenl. Ev.; Lawson, Encyc. of Pl. & Pr. ; 1 Sm. Lead. Cas. 282, note to Lampleigh v. Braithwaite ; Select Essays in Anglo-American Leg. Hist. vol. 3; COVE NANT; DEBT; JUDGMENT.