torney. Quantum meruit FOR FEES. the said defendant, and for fees due and of right payable to the said plaintiff in respect thereof.-And also for other the work and labor, care, diligence, and attendance of the said plaintiff by the said plaintiff before that time done, performed, and bestowed, in and about the drawing, copying, and engrossing of divers conveyances, deeds, and writings, for the said defendant, and in and about other the business of the said defendant, and for the said defendant and at his special instance and request, &c.-And also for divers journies and other attendances by the said plaintiff before then made, performed, and given, in and about the said business, and other the business of the said defendant, and for the said defendant, and at his like special instance and request; and being so indebted," &c. As an at- (Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time done, performed, bestowed, and given, other his work and labor, care, diligence, and attendance, as the attorney and solicitor of and for the said defendant, and upon his retainer, in and about the prosecuting, defending, and soliciting of divers other causes, suits, and business, for the said defendant; and had also at the like special instance and request of the said defendant before that time done, performed and bestowed, other his work and labor, care, diligence and attendance, in and about the drawing, copying, and engrossing of divers other conveyances, deeds, and writings, for the said defendant, and in and about other the business of the said defendant, and for the said defendant. --And had also at the like special instance and request of the said defendant before that time made, performed, and given divers other journies and attendances in and about other the business of the said defendant, and for the said defendant, he the said defendant undertook," &c. (Add a count for work and labor generally, and all the common counts (e) (1). thereon. The like Same as in the preceding form, ante, 68, except, instead of the words “ prosefor procur- cuting, defending, and soliciting of divers causes, suits, and businesses," say ing defendant's dis- "endeavoring to procure and obtain, and procuring and obtaining the said decharge as fendant's discharge from imprisonment, as an insolvent debtor, in pursuance of the statute then in force for the relief of insolvent debtors in England." an insol vent. As a witness (ƒ). The indebitatus count is as ante, 37, inserting these words, "for the work for business done at law or in equity, adding all cases suffice. {3 Dougl. 29. } Ante, 65, n. Skin. 218. See notes, post, 75, as to what is a defence to this action, &c. and see in general Chit. jun. on Contr. 2d edit. 443 to 447. 2 Chitt. Gen. Pract. 26. 3 Campb. 451. M'Clel. Rep. 25. (e) When an attorney may recover on the count for money paid, though his bill has not been delivered in, see Tidd, 9th ed. 325. 11 East, 285. 5 B. & A. 898. (f) See Chit. jun. Contr. 175.-1 Taunt. 10.-A promise to pay for loss of time, is not binding.-1 B. & B. 515.-4 J. B. Moore, 300. S. C.-5 M. & S. 156.-Collins (1) In Pennsylvania it has been decided in one case, that an action cannot be maintained by a gentleman of the Bar, for a compensation for services rendered in the trial of a cause, and for advice; but if the client gives a note or bond for such compensation an action lies thereon. Mooney v. Lloyd, 5 Serg. & Rawle, 412. But this case has been recently overruled, and it is now settled, that an attorney at Law has a legal right to recover a quantum meruil for his professional services, Gray v. Brackenridge, 2 Penn. Rep. 75. dec. Robbins v. Harvey, 5 Conn. Rep. 335. } and labor, journies, and attendance of the said plaintiff, by him the said plain- FOR FEES." tiff before that time done, performed, bestowed, made, and given, as a witness for and on the behalf of the said defendant, and at his special instance and request, in and about the attending to give his the said plaintiff's evidence upon the trial of a certain action before then depending in the court of our said lord the king, before the king himself, and wherein the said defendant was plaintiff, and one E. F. was defendant, and being so indebted," &c. (Conclude as ante, 37.)—The quantum meruit thereon is as ante, 37, inserting as follows, “had before that time done, performed, and bestowed other his work, labor, and attendance, and made divers other journies, *and given other his attendance as a [*74 ] witness, upon the trial of a certain other cause wherein the said defendant was plaintiff, and the said E. F. defendant, he the said defendant undertook," &c. (Conclude as ante, 38.) 170 Thirdly.-For Services in general. FOR SER VICES IN GENERAL. The indebitatus count is as ante, 37, inserting these words, "for the work and labor, care, and diligence of the said *plaintiff, by the said plaintiff before For work v. Godefroy, Easter Term, K. B. 1830. 1 Barn. & Adolph. 950. } A person who is subpoenaed, and attends, but refuses to give evidence, unless his expenses are paid, may sue in assumpsit for his necessary expenses of attendance, against the party who subpœnaed him. 13 East, 15. (g) See forms, Lil. Ent. 26, 38, 43, &c.; for work and labor as an actress, 2 Rich. C. P. 83; for Forms for recovery of wages, &c. ante, 65 to 69. As to this count in general, see fully, ante, vol. i. 303. A contract to pay money for any description of work and labor done for the defendant, may be given in evidence under this count, and medicines, &c. administered may be considered as materials found by the plaintiff, and used in and about the work and labor. 3 Campb. 37.-1 N. R. 189. Skin. 218. Ante, vol. i. 304. When the work or service has been completely performed for the defendant, and accepted by him, though under a special agreement, if the agreement was not under seal, and was for payment in money, this count is sufficient. Fitzg. 302.-1 Wils. 117.-Bul. N. P. 139.2 Chit. Rep. 320; and in some cases, though the original agreement be not performed, yet, if the defendant has actually derived benefit from the part performance, he will be liable on the quantum meruit or quantum valebant. Peake, 103.-1 Stark. 275.-6 Taunt. 322.-1 Marsh. 581.-4 Taunt. 745. -2 Taunt. 150.-3 Chit. Com. Law, 271. acc. but see 1 New Rep. 355. Where new work is not applicable to the special contract, plaintiff may recover under this count. Holt's C. N. P. 236.-1 Stark. 275, S. C. Where A. being employed by B. as a clerk, at a salary of 2001. per annum, payable VOL. II. 7 quarterly, was discharged in the middle of a But this count will not suffice where the Nor will this common count for work and labor and materials, suffice, to recover a claim for work bestowed on the materials of the plaintiff, in making a chattel which never be came defendant's property, by being vested in him. 8 B. & Cres. 277, 283. Nor can a person who contracts to build a house, furnishing both timber and labor, recover for the materials on account for goods sold and delivered, although, by reason of a deviation from the original plan, the contract is superseded as to price. 6 Taunt. 322. and labor and mate rials (g). *75 ] FOR SER- that time done, performed, and bestowed, in and about the business of the said *defendant, (h) and for the said defendant, and at his special-instance and re VICES IN GENERAL. {As to builders, carpenters, and workmen in general, see Chit. Jun. on Contr. 2 edit. 448. } If the plaintiff declare upon a special agreement, and also upon a quantum meruit, and at the trial prove a special agreement, but different from that stated in the declaration, he cannot recover on either count; not on the first, because of the variance, nor on the second, because there was a special agreement; but if he prove a special agreement, and the work done, but not pursuant to such agreement, he shall recover upon the quantum meruit, for otherwise he would not be able to recover at all. Bul. N. P. 2d ed. 139. 1 New. 355. As to contracts for work and labor in general, see fully Chit. jun. on Contracts, 2 ed. 430 to 463, and the notes to the preceding forms, 65 to 74. It is a general rule, that if there has been no beneficial service whatever, there shall be no pay. 3 Stark. 6. 1 Campb. 38. 3 Campb. 451. 1 Ry. & Moo. 317. 9 B. & C. 92; but if some benefit has been derived, though not to the extent expected, this shall go to the amount of the plaintiff's demand, leaving the defendant to his action for the plaintiff's non-performance of the agreement. 3 Stark. 6. 1 Campb. 39. 190. 7 East, 484; and though a party undertakes a work of specified dimensions and materials, and deviates from the specification, yet, if the defendant expressly or impliedly suffer the deviation, or accept the thing manufactured in its incomplete state, then the defendant will be bound by the original contract, as far as it can be traced, and a fair remuneration for the work done is recoverable. 1 Stark. 275. 6 Taunt. 322. 1 Marsh. 581. 4 Taunt. 745. 2 Taunt. 150. Bla. Rep. 103, acc.; but see 1 New Rep. 375; and where some additions are made to a building which the workman contracts to finish for a certain sum of mo. ney, the contract shall exist as far as it can be traced to have been followed, and the excess only paid for according to the usual rate of charging. But if a man contract to work by a certain plan, and that plan be so entirely abandoned that it is impossible to trace the contract and say to which part of the work it shall be applied, in such case the workman shall be permitted to charge for the whole work done, by measure and value, as if no such contract had been made. Per Ld. Kenyon, Peake's Rep. 103. Where the plaintiff undertook, for a specified sum, to repair and make perfect an article then in a damaged state, and did repair it in part, but did not make it perfect; it was held he could not recover even for the work actually dor.e. 9 B. & Cres. 92. If the plaintiff has put better materials into a work than those contracted for, he cannot, in general, compel the defendant to pay an increased sum for them. 3 Car. & P. 453. Though a specified sum be agreed on for the performance of the work, it seems defendant may reduce that sum on showing the inferiority of the work to what it ought to have been, and giving the plaintiff notice that defendant intends setting up such a defence at the trial. 7 East, 479.-1 Camp. 38.-3 Stark. 32.-And where the claim is on a quantum meruit, the defendant may, without notice, reduce the damages, by showing that the work was improperly done, and may entitle himself to a verdict, by showing its total insufficiency. Id.-1 Campb. 191; 3d id. 401.-1 Stark. 108. If a bill of exchange has been accepted for the work, the bad quality and partial insufficiency, do not form a ground for reducing the amount claimed-1 Camp. 40.-3 Camp. 346.-3 Campb. 38.-14 East, 486. To entitle the plaintiff to recover, there must have been an express or implied contract for remuneration. Therefore an action cannot be maintained for services performed, with a view to a legacy, and not in expectation of reward in nature of a debt. Str. 728.-1 Esp. 188. Where a person performed work for a committee, under a resolution entered into by them, "that any service rendered by him should be taken into consideration, and such remuneration be made as should be deemed right;" it was held no action would lie to recover a recompence for such work. Taylor v. Brewer, 1 M. & S. 290. Bail cannot sue for trouble and loss of time in going to a place to become bail for another. 1 Car. & P. 434. As to the right of arbitrators to remuneration, see Chit. jun. on Contr. {2 ed. 430, several cases, pro and con. } But where the defendant requested the plaintiff to take care of and show defend. ant's house, and promised to make him a handsome present, it was held, the plaintiff might recover a reasonable recompense for the work and labor. 5 Taunt. 302.-Fitzg. 302. If a slave comes over from the West Indies, and continues in the service of his master here, he is not entitled to wages, unless there has been some agreement or contract of service. 3 Esp. Rep. 3. And see 2 Car. & P. 231. See further as to the right to recover for work and labor, in particular cases, for wages and fees, the various notes, ante, 65 to 75; and post, 76 to 87. (h) If done at the request of the defendant for a third person, omit the statement of the business, &c. being "of the defendant;" and if the defendant's liability be merely collateral on a written contract, declare specially, 1 Saund. 211 b. VICES IN quest. And also for divers materials (i) and other necessary things by the FOR SERsaid plaintiff before that time found and provided, and used and applied, in GENERAL. and about that work and labor for the said defendant, and at his like special instance and request, and being so indebted," &c. (Conclude as ante, 37.)— The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time done, performed, and bestowed other his work and labor, care, and diligence, in and about other the business of and for the said defendant, and had also at the like special instance and request of the said defendant, before that time found and provided divers other materials and necessary things, and used and applied the same in and about the said last-mentioned work and labor, he the said defendant undertook," &c. (Conclude as ante, 38.)-[Add one count for goods sold-money paid-and the account stated-and breach. If the demand be for work only, you may omit those parts which relate to the materials.] . with or with [*77] The indebilatus count is as ante, 37, inserting these words, "for the work For work and labor, care, and diligence of the said plaintiff, before that time done, per- horses and formed, and bestowed by the said plaintiff and his servants, and with his carriages, horses, carts, and carriages, [or, with his lighters and other vessels'] goods, lighters, and chattels, in and about the business of the said defendant, and for the said &c. defendant, and at his special instance and request, and being so indebted," &c. (Conclude as ante, 37.) If it be for the carriage of goods, instead of the words between the brackets, say [in and about the carrying and conveying of divers goods, chattels, and *merchandize, and delivering the same for the said defendant, and at his special instance and request," &c. or the count may be as in the next indebitatus count.] The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time done, performed and bestowed other his work and labor, care, and diligence, by himself and his servants, and with his horses, carts, and carriages [or,' with his lighters and other vessels'] goods, and chattels, in and about the business of the said defendant, and for the said defendant, he the said defendant undertook," &c. Conclude as ante, 38.)-[Add one indebitatus assumpsit count for work and labor generally-the account stated-and breach.] The indebitatus count is as ante, 37, inserting these words, "for the car- For the riage and conveyance of divers goods, merchandize, and chattels, by the said carriage of goods plaintiff before that time carried and conveyed in certain carts and other car- by land riages for the said defendant, and at his special instance and request, and be- (k). ing so indebted," &c. Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time carried and conveyed divers other goods, merchandize, and chattels, in certain other carts and carriages, for the said defendant, he the said defendant undertook," &c. Conclude as ante, 38.)-[Add one count for work and labor generally-money paid-account stated—and breach.] the count include also a demand for materi (i) Where necessary to insert this, see 6 Taunt. 324.-1 Marsh. 581. S. C. Plaintiff als. may recover for work and labor, although (k) See the observations on the last indebitatus count. FOR SER VICES IN and at The indebitatus count is as ante, 37, inserting these words, "for the work and labor, care, and diligence of the said plaintiff by him the said plaintiff beFor work, fore that time done, performed, and bestowed, in and about the business of the journies, said defendant, and for the said defendant, and at his special instance and retendance. quest, and for divers journeys and attendances by the said plaintiff before that time made, performed, and given, in and about the said work and labor for the said defendant, and at his like special instance and request, and being so indebted," &c.—(Conclude as ante, 37.)—The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time done, performed, and bestowed other his work and labor, care, and diligence, in and about other the business of the said defendant, and for the said defendant, and had also at his like special instance and request, before that time made, performed, and given, divers other journeys and attendances in and about the said last-mentioned work and labor for the said defendant, he *the said defendant undertook," &c. (Conclude as ante, 38.) [Add one count for money paid-account stated-and breach.] [ *78 ] As an agent gen erally, and for commission(). As a factor or agent in selling goods (m) The indebitatus count is as ante, 37, inserting these words, "for the work and labor, care, diligence, journies, and attendance of the said plaintiff, by the said plaintiff before that time done, performed, and bestowed, as the agent of and for the said defendant, and on his retainer, and for certain commission and reward due and of right payable from the said defendant to the said plaintiff in respect thereof, and being so indebted," &c. (Conclude as ante, 37).— The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time done, performed, and bestowed other his work and labor, care, diligence, journies, and attendance, as the agent of and for the said defendant, he the said defendant undertook," &c. (Conclude as ante, 38. [Add one count for work and labor generally-account stated-and breach.] The indebitatus count is as ante, 37, inserting these words, "for the work and labor, care, and diligence, journies and attendances of the said plaintiff, by him the said plaintiff before that time done, performed, and bestowed, as the factor and agent of the said defendant, in and about the selling and disposing of divers goods, merchandize, and chattels, and in and about other the business of the said defendant, and for the said defendant, and at his special instance and request, and being so indebted," &c. (Conclude as ante, 37.)— The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time done, performed, and bestowed, other his work and labor, care, and diligence, journies and attendances, as the factor and agent of the said defendant, in and about the selling and disposing of divers other goods, merchandize, (1) See 1 Wentw. 195; and see in general as to an agent's right to commission, Chit. jun. Cont. 162, 3. 3 Chit. Com. Law, 221. Pailey Prin. & Agent. Ante, 74, n. a. Where the principal derives no benefit whatever from the acts of his agent, in consequence of some misconduct or mismanage ment on the part of the latter, no remuneration can be recovered.-1 Com. Contr. 271. 8 Bro. P. C. 339.-3 Stark. C. N. P. 161. 1 Car. & P. 384.-3 Taunt. 32.-3 Camp. 451.-M'Lel. Rep. 25.-An agent cannot recover commission for effecting sales in an illegal undertaking.-3 B. & Cres. 639.-5 D. & R. 542. S. C. (m) See a form for del credere commission, for which indebitatus assumpsit will lie, 14 East, 578; at least it would be good after verdict.-8 Taunt. 371.-2 J. B. Moore, 420. S. C.-See the preceding note. |