Thompson v. French

• Decision Date: 31 December 1837
• Parties: THOMPSON v. FRENCH.
• Court: Tennessee Supreme Court

18 Tenn. 452

THOMPSON

v.FRENCH.

Supreme Court of Tennessee.

December Term, 1837.

F. B. Fogg and J. Campbell, for plaintiff in error.

R. J. Meigs and Geo. S. Yerger, for defendant.

TURLEY, J., delivered the opinion of the court.

This is an action of debt brought by the defendant in error to recover compensation for services rendered the plaintiff's intestate in his lifetime, as a general superintendent of his property and business. The declaration contains the indebitatus count for work and labor done, and a count upon a quantum meruit for the same services. The pleas are nil debet and the statute of limitations. The jury found a verdict for the defendant in error, upon which the court gave judgment, and to reverse which this writ of error is prosecuted.

The proof shows abundantly that Wm. P. French, the plaintiff in the circuit court, was assiduously engaged in attention to the business of Thomas Hopkins, the intestate, almost continually from the year 1821 to the year 1836, but without any special contract as to the amount or nature of the compensation to be given therefor, and out of this the first cause of error is assigned, viz., that the action of debt is not the proper remedy, because, 1st, the damages being unliquidated and uncertain, the proper remedy is assumpsit, and not debt; and, 2d, the action is not maintainable against an administrator upon the simple contract of his intestate, by the principles of the common law.

That the actions of debt and indebitatus assumpsit are concurrent remedies in case of simple contracts for the payment of money, either express or implied, has been so repeatedly held that it is deemed unnecessary to enter into an examination of the authorities in support of the proposition, and we are satisfied with a reference to the case of Hickman v. Searcy's Executor, 9 Yerg. 47, where this point is expressly so adjudicated by this court.

That indebitatus assumpsit is a proper remedy to recover compensation for work and labor done cannot be denied--indeed (if the action of debt be not proper), it is the only remedy where the amount of compensation has not been ascertained by express agreement, for no special count in assumpsit can be framed upon a promise arising by implication of law. The special counts in assumpsit are given to recover damages for the non-performance of contracts specially entered into, and whether the consideration be executed or executory makes no difference. The common counts are founded on express or implied promises to pay money in consideration of a precedent and existing debt, and in general the consideration must have been executed, not executory, and the plaintiff must have been entitled to payment in money. 1 Chit. Pl. 373. So that the indebitatus count in assumpsit is no more the proper remedy to recover unliquidated damages arising from the non-performance of a special contract than would be the action of debt. But it is said that the action of debt will only lie for a sum which is certain, or is capable of being readily reduced to a certainty. This, as a general principle, is true, but, extended to the length to which it is sought to be carried, would be entirely subversive of the action of debt as a remedy upon simple contracts, where the amount to be paid has not been ascertained by express agreement, or would make the right to use it depend, not upon legal principles, but upon the nature and character of the proof to be adduced upon the trial, and the ease or difficulty with which the value of services performed or the goods delivered could be ascertained thereby. It is not denied that the action will lie for goods, wares, and merchandise sold and delivered, and for work and labor done, although there be no express agreement as to the amount to be paid. This court cannot, therefore, say that the test is the difficulty of ascertaining the value of the goods sold and delivered, and the work and labor done, because they may be of a kind and character about which men may well differ in opinion.

It is not to be denied that there is some confusion produced in the books, relative to the use of this action, by the employment of such terms as ““ eo nomine,” “ in numero,” and “unliquidated damages.” But it is well settled that, although a specific sum must be demanded in the declaration, a less may be recovered, and that although in all cases of goods, wares, and merchandise sold and delivered, and of work and labor done, where the law implies the promise because the consideration is executed, the damages are of necessity unliquidated, yet the action is maintainable. But this confusion is produced either by a loose use of the phrases or by giving them an improper construction. By “ eo nomine,” and “ in numero,” is only meant that a specific sum is sought to be recovered which is improperly detained, and that the action does not sound in damages as does the action of assumpsit, thus drawing the proper line of demarcation between them, as applicable to contracts of the character under consideration. By the words “unliquidated damages” is manifestly meant (if there be any meaning in what is most unquestionably a very loose use of words) such damages as are sustained by the non-performance of an executory contract, which cannot be considered as a money demand, and the amount of which may depend upon such a variety of considerations and circumstances as to render it exceedingly difficult to be ascertained. To illustrate it by an example, suppose a contract for the building of a house, which is not performed, or performed in a manner different from the contract, the damages sustained are “unliquidated,” and such as are not readily reduced to a certainty, and for which neither indebitatus assumpsit nor debt will lie.

The principle, then, established by us is this: That in all cases where the...