A selection of cases on the law of quasi-contracts ;

Front matter

Cornell University Library KF 1244.A7K26 v.1 A selection of cases on the law of quasi

3 1924 019 955 115

The original of this book is in the Cornell University Library.

Preface

This collection of cases deals in the main with that portion of the law of quasi-contracts depending on the theory of unjust enrichment, and enforceable at common law by the use of the indebitatus counts. While much that is exclusively of equitable cognizance might properly be discussed under the title of quasi-contracts, the fact that such topics are treated in other courses in the School renders it unnecessary to refer to them in a collection intended primarily for the use of Harvard Law Students.

That Quasi-Contracts has been chosen as a title will not be a surprise to any one familiar with the confusion existing in the cases in consequence of the indiscriminate use of the term " Implied Contract," — the term being used not only with reference to a contract implied in law, which is not a contract at all, but also with reference to a contract implied in fact, which is a true contract. It is safe to say that the development of this branch of the law has been much retarded by a confusion of ideas consequent upon this confusion of terms.

The method of teaching by cases has grown steadily in favor since its introduction in the Harvard Law School, and has almost universally commended itself to those who have examined it, or have seen its fruits. As these volumes may, however, fall into the hands of persons not acquainted with the use made of the cases, a few words relating thereto may not be out of place. While this method of teaching does not at all proceed on the idea that the common law is wanting in jurists, its advocates regard the adjudged cases as the original sources of our law, and think that it is better for the student, under proper advice and guidance, to extract from the cases a principle, than to accept the statement of any jurist, however eminent he vi PREFACE.

may be, that a certain principle is established by certain cases. When the student has by the study of cases grasped a principle, it has assumed to him a concrete form, and he can apply it because it was by studying it in its application that he has acquired his knowledge. Under this system the student must look upon law as a science consisting of a body of principles to be found in the adjudged cases, the cases being to him what the specimen is to the geologist. And judged from this point of view an overruled case may be of as much importance as a decision that has never been questioned. For example, the case of Moses v. Macferlan, 2 Burr. 1002, is generally regarded as overruled. Yet no opinion in which the count for money had and received is discussed, is so often referred to as the opinion of Lord Mansfield in that case. And no student can afford to ignore the case.

A system in which principles are studied in their application to facts would seem to combine in the highest possible degree the theoretical and practical. In no other way can a student so thoroughly acquaint himself with the methods used by judges in applying principles of law to the facts before them. It must be borne in mind that this method of teaching does not consist in lectures by the instructor, with references to the cases in support of the propositions stated by him. The exercises in the lecture-room consist in a statement and discussion by the students of the cases studied by them in advance. This discussion is under the direction of the instructor, who makes such suggestions and expresses such opinions as seem necessary. The student is required to analyze each case, discriminating between the relevant and irrelevant, between the actual and possible grounds of decision. And having thus discussed a case, he is prepared and required to deal with it in its relation to other cases. In other words, the student is practically doing as a student what he will be constantly doing as a lawyer. By this method the student's reasoning powers are constantly developed, and while he is gaining the power of legal analysis and synthesis, he is also gaining the other object of legal education, namely, a knowledge of what the law actually is.

A word as to text-books. An inspection of the books on the shelves of the library will show how erroneous is the idea that text-books have been banished from the School. The instructors not only

PREFACE. Vll

endeavor to acquaint the students with the relative merits of the various authors, but also make such references to text-books during the course of the lecture as may be necessary.

As the printing of head-notes would be inconsistent with this system of teaching, they have been omitted. To keep the book within the proper limits as to size and cost, it has been necessary to omit as a rule the arguments of counsel. An index at the end of the second volume will, it is hoped, render the book somewhat useful to the practising lawyer.

The Editor reserves for a treatise on the law of Quasi-Contracts what might otherwise appear in a summary.

WILLIAM A. KEENER.

Cambridge, Oct. 1, 1888.

CONTENTS OF YOL. I.

Chapter II. Failure Of Consideration

SECTION I.

Mistake a. Mistake may be as to Law or Fact 69

b. Mistake may be as to the Creation of a Contract 182

c. Mistake may be as to the Validity or Amount of a Claim 212

d. A Claim may be paid under a Mistake as to a Collateral Fact . . . 304

e. Mistake may be as to Title of Vendor 337

/. Mistake may be as to the Existence or Identity of the Subject-Matter

of Sale 390

g. There must be an unjust Enrichment of defendant at Plaintiff's

Expense 403

h. When a Demand is necessary 416

i. Plaintiff's Negligence no Bar to a Recovery 428

/. Defence of Purchase for Value 435

k. Effect of Defendant's Change of Position 451

SECTION IL

Failure of Defendant to perform Contract 482

a. Defendant relying on Statute of Frauds 482

6. Performance impossible 515

CONTENTS OF VOL. II.

CHAPTER II.

FAILURE OF CONSIDERATION. ( Continued.)

SECTION II.

Failure op Dependant to perform Contract.

(Continued.)

Page

c. Defendant relying on Illegality of Contract 1

d. Wilfully or -without Excuse 61

Chapter VI. Waiver Of Tort 572

INDEX. 649

TABLE OF CASES.

Vols. I. and II.

Abbotts v. Barry Adatnson, Ex parte Aiken v. Short Albea v. Griffin Alfred v. Fitzjames Andrews v. Andrews Andrews v. Hawley Anglo-Egyptian Navigation

Rennie Anonymous Appleby v. Dods Appleby v. Myers Appleton Bank v. McGilvray Armstrong Co. v. Clarion Co.

Arris v. Stukeley Ashmole v. Wainwright Asprey v. Levy Astley v. Reynolds Atkins v. Banwell Atkins v. Barnstable Attorney-General v. Perry Atty v. Parish

Co.

11.61

435 11.73

Bailey v. Bussing II. 494

Ballon v. Billings II. 129 Bank of Commerce v. Union Bank 236

Bank of England v. Tomkins 399 Bank of United States v. Bank of

Washington II. 379

Barrell, Ex parte 11.145

Bartholomew v. Jackson II. 276

Bartholomew v. Markwick II. 108

Batard v. Hawes II. 483

Bates v. New York Ins. Co. II. 548

Beed v. Blanchard II. 81

Bilbie v. Lumley 77

Billings v. Monmouth 209

Bingham v. Bingham 73

Bize v, Dickason 75

Pace

Bloxsome v. Williams

II. 7

Bond v. Aitkin

Bonnel v. Fouke

Bosanquett v. Dashwood

Boston & Sandwich Glass Co

Boston

Boulton v. Jones

Boston Ice Co. v. Potter

Boylston Bank v. Richardson

Bree v. Holbech

Bright v. Boyd

Brisbane v. Dacres

Bristow v. Eastman

Brittain v. Lloyd

Britton v. Turner

Brown v. Brown

Brown v. Hodgson

Brown v. McKinnally

Bruechner v. Port Chester

Brumby v. Smith

Buckland v. Johnson

Buel v. Boughton

Campbell v. Fleming

Canal Bank v. Bank of Albany

Carew v. Rutherford

Carnac, In re

Carpenter v. Northborough Bank

Cartwright v. Rowley

11.67

Catlin v. Tobias

Catts v. Phalen

Chambers v. Miller

Champlin v. Rowley

Chandler v. Sanger

Chase u. Corcoran

Chatfield v. Paxton

77 note

Churchill v. Holt

City National Bank v. Park Bank

Claflin v. Godfrey xn

TABLE OF CASES.

Page

Claranoe v. Marshall

Clare v. Lamb

Clark v. Pinney

Clarke v. Dutcher

Clarke v. Sliee

Cleary v. Sohier

Close v. Phipps

Cochran v. Welby

Cocks v. Masterman

Collie, In re

Collier v. Bates

Commerce, Bank of, v. Union Bank 236

Condon, In re 106

Cooke v. Munstone II. 77

Cooper v. Cooper. II. 358

Cooper v. Phibbs 96 Cork &Youghal Railway Co., In re II. 11 Corn Exchange Bank v. Nassau Bank 270

Craythorne v. Swinburne II. 468

Cripps v. Reade 337

Culbreath v. Culbreath 153

Cutter v. Powell II. 185

Dallas, City Bank of, v. Park Bank II. 639

Davies v. Humphries II. 473

De Cadaval v. Collins II. 371

Decker v.. Pope II. 457

Deering v. Winchelsea II. 458

Deery v. Hamilton 204

De Halin v. Hartley 273

De Medina v. Grove II. 375

Derby v. Johnson II. 113

De Silvale v. Kendall 515

Detroit v. Martin II. 418

Dew v. Parsons II. 527

Dibbs v. Goren 95

Dietz's Assignees v. Sutcliffe II. 637

Dix v. Marcy 509

Doolittle v. McCulloch II. 116

Dowling v. McKenney 513

Durrant v. Commissioners 462

Dutcli v. Warren II. 61

Earle o. Coburn II. 281

Edmunds v. Wallingford II. 396

Ehrensperger v. Anderson II. 89

Eichholz i\ Bannister 368

Elliott v. Swartwout II. 408

Ellis v. Hamlen II. 131

England v. Marsden II. 394

England, Bank of, v. Tomkins Exall v. Partridge

Page

Farmer v. Arundel 73

Feise v. Parkinson 187

Ferguson v. Carrington II. 589

Fewings v. Tisdal ' II. 87

First Baptist Church v. Caughey 205 First National Bank v. Mastin Bank 302

Foster v. Stewart II. 584

Franklin Bank v. Raymond 407

Freeman v. Jeffries 416

Freichnecht v. Meyer II. 330

Galvin v. Prentice IT. 255

Giles v. Edwards II. 66

Gist v. Smith II. 517

Goddard v. Merchants' Bank ' 239

Goepel v. Swinden II. 481

Gompertz v. Bartlett 401

Goodman v. Pocock II. 101

Goodnow v. Moulton II. 323

Greer v. Greer 489

Griffinhoofe v. Daubuz II. 391

Griggs v. Austin . 537

Guild v. Guild II. 343

Gulliver v. Cosens II. 541

Gurney v. Womersley 363

Guthrie v. Holt II. 316

Haggerty v. McCarina

Hales v. Freeman

Hambly v. Trott

Hamlet v. Richardson

Hapgood v. Shaw

Harris v. Loyd

Harrison v. Luke

11.85

Hasser v. Wallis

Haven v. Foster

Hawkins v. Brown

Hawley v. Moody

Hayward v. Leonard

Hemphill v. Moody

Hentig v. Staniforth

II. 5

Hewer v. Bartholomew

Higgs v. Scott

Hill v. Perrott

Hills v. Street

TABLE OF OASES.

Xlll

Page

Hirst v. Tolson

Hitchcock v. Giddings

Hitchin v. Campbell

Hodsden v. Harridge

Hoffman v. Bank of Milwaukee

Hollis v. Edwards

Houck's Executors ». Houck

Hubbard v. Hickman

Hulle v. Heightman

11.67

Hunt v. Silk

11.72

Irving v. Richardson

Isle Royal Co. v. Hertin

Jackson v. McKnight

James, Ex parte'

Jaques v. Golightly

II. 1

Jenkins v. Tucker

Jennings v. Camp

Johnson v. Johnson

Johnson v. Royal Mail Packet Co

Jones v. Judd

Jones v. Ryde

Kelley ». Lindsey

Kelly v. Solari

Kemp v. Finden

Kilgour v. Finlyson

King v. Welcome

Kingston Bank v. Eltinge

Kitchen v. Campbell

Kneil v. Egleston

Knowles v. Bovill

Knowlman v. Bluett

Lamborn v. Commissioners

Lansdowne v. Lansdowne

Leather v. Simpson

Leigh v. Dickeson

Liddard v. Lopes

Lightly v. Clouston

Lindon v. Hooper

Livesey v. Livesey

London v. Goree

Lord v. Wheeler

Louisiana v. New Orleans

Luke v. Lyde

McArthur v. Luce

McCarthy v. Decaix

McCuIloch v. Assurance Co.

McKleroy v. Southern Bank

Page

II

McManus v. Cassidy

Malcolm v. Fullarton

Manhattan Ins. Co. v. Buck

Marriott v. Hampton

Marsh v. Keating

Martin v. Sitwell

Masson v. Swan

Mathews v. Davis

Mayer v. New York

Menethone v. Athawes

Merchants' Ins. Co. v. Abbott

Merchants' National Bank u. Eagle- Bank

Merchants' National Bank v. National Bank

Merryweather v. Nixan II. 492

Milford v. Commonwealth

Mills v. Alderbury Union

Milnes v. Duncan

Morch v. Abel

Morgan v. Palmer

Morley v. Attenborough

Morville v. Tract Society

Moses v. Macferlan

Mosteller's Appeal

Munro v. Butt

Munt v. Stokes

Mussen v. Price

II. 3

11.56

11.349

11.69

National Bank v. Bangs 256 National Permanent Building Society,

In re, II. 20

National Trust Co. a. Gleason II. 631

Neate v. Harding II. 611

Newall v. Tomlinson 458

Newport v. Saunders II. 593

New York Life Ins. Co v. Seyms II. 230

New York Life Ins. Co. v. Statham II. 230

Nibbs v. Hall II. 526

Niblo v. Binnse II. 224

Nolan v. Manton II. 641

Northrop v. Graves 145

Oceanic Navigation Co. a. Tappan II. 561 Osborn v. Guy's Hospital II. 342

Oughton v. Sippings II. 590

Oxendale v. Wetherell II. 137

Pacific R. R. Co. ... United States II. 336 Parcher v. Marathon County II. 429

XIV

TABLE OF CASES.

Pace

Page

Parker v. Great Western Railway Co,

Standish v. Ross

II.

540, note

Stanley Co. v. Bailey

Parker v. Tainter

Stark v. Parker

Parnell, In re,

Steamship Co. v. Joliffe

Paul v. Dod

11.86

Steele v. Williams

11.544

Payne v. Whale

11.79

Stevens v. Pitch

People v. Gibbs

Stokes v. Lewis

People v. Speir

Strickland v. Turner

Perkinson v. Guilford

Stuart v. Sears

Philbrook v. Belknap

Sturgis v. Preston

Phillips v. Homfray

Swift Co. v. United States

Pitcher v. Turin Co.

Pitt v. Purssord

Talbot v. National Bank

Planche v. Colburn

11.83

Taylor v. Hare

Piatt v. Bromage

Tew «. Jones

Pooley v. Brown

Thomas v. Brown

Powell v. Bees

Thomas v. Richmond

Power v. Wells

11.61

Thompson v. Howard

Preston v. Boston

Thompson v. Williams

Price v. Neal

Tomkins v. Bernet

Prickett v. Badger

11.104

Tottenham v. Bedingfield

Pulbrook v. Lawes

Toussaint v. Martinnant

Towers v. Barrett

11.62

Townsend v. Crowdy

Rainer v. Huddleston

Tracy v. Talmage

11.30

Ray v. Bank of Kentucky

Turner v. Da vies

Reynolds v. Wheeler

Turner v. Robinson

Rogers v. Walsh

Turner v. Turner

Russell v. Bell

Turner v. Webster

Sceva v. True

Union National Bank v. Sixth

Na-

Scholey v. Mumford

United States, Bank of, v. Bank . of

Schreve v. Grimes

Washington

Selway v. Fogg

Sharkey v. Mansfield

Shipton v. Casson

Van Deusen v. Blum

Shove v. Webb

Vandyck v. Hewitt

II. 2

Simmonds, Ex parte

Vauglian v. Cravens

Simpson v. Nichols

II. 9

Vaughan v. Mathews

Sinclair v. Bowles

Smith v. Bromley

Wakefield v. Newbon

Smith v. Cuff

Walker v. Dixon

Smith v. Drake

Walker v. Mathews

Smith v. Mercer

Waples v. United States

Smith v. Smith

Weaver i: Bentley

II. Ill

Smout v. Ilbery

Webb v. Alexandria

Snowdon, Ex parte

Welch v. Goodwin

Snowdon v. Davis

Wenlock v. River Dee Co.

11.23

Southwick v. Bank of Memphis

Wheadon v. Olds

Speake v. Richards

Whincup v. Hughes

Spencer p. Parry

11.441

White v. Continental National Bank 476

TABLE OF CASES.

XV

Page

Face

White v. National Bank

Wooley v. Batte

Wilkinson v. Johnson

Wright v. Colls

11.95

Williams v. Bemis

Wright v. Newton

Williams v. Gibbes

Williams v. Hedley

Youmans v. Edgerton

Williamson, Ex parte

11.20

Young v. Cole

Wood v. Sheldon

Young v. Marshall

CASES ON QUASI-CONTRACTS.