Page:Harvard Law Review Volume 10.djvu/531

KEENER ON QUASI-CONTRACTS. 505 tion that the plaintiff in Exall v. Partridge has a cause of action against any of the defendants except Partridge. There is a ground in the particular case for sustaining the plaintiff's recovery, which is not adverted to either by the court or by the author. At the time of paying the rent, the plaintiff took a receipt stating that the payment was made "on account" of the defendants, and this receipt may be regarded as an informal assign- ment of the landlord's rights to the plaintiff, which the plaintiff might enforce in a proper form of action. Where this element is lacking, however, it is difficult to see any breach of right, or consequently any cause of action. 2. In Deering v. The Earl of Winchelsea,^ it appeared that the plaintiff and defendant were sureties on separate bonds for the faithful performance of his duties by a brother of the plaintiff. The brother having defaulted in his duties, and the plaintiff hav- ing been compelled as surety to pay the whole loss, the plaintiff endeavored to compel the other two sureties to contribute to the burden in equal shares. There was no evidence of any contract to contribute. The court held that the plaintiff should recover, and the learned author agrees with the court, regarding the case as a good illustration of the doctrine of unjust enrichment.^ The doctrine of restitution does not apply, because the defend- ant has committed no breach of a consensual obligation and no tort, and also because there is nothing for him to restore, for he has received nothing from the plaintiff. The learned author himself advances no argument in support of the plaintiff's right of recovery ; but he cites from the opinion of the court a passage of which the essence is contained in these sentences : " The point remains to be proved that contribution is founded upon contract. If a view is taken of the cases it will appear that the bottom of contribution is a fixed principle of jus- tice, and is not founded in contract. . . . The reason is, they the sureties are all in csquali jure^ and, as the law requires equality, they shall equally share the burden." With all due deference to the learned court and to the author, the point to be proved is, not that the right to contribution is founded on contract, but that it exists independently of contract. It was the latter proposition that the plaintiff affirmed and the defendants denied. But, apart from t his, is the reasoning of the 1 2 B. & P. 270. * Page 401. ^1