Open main menu

Page:Harvard Law Review Volume 2.djvu/29

This page needs to be proofread.


THE HISTORY OF ASSUMPSIT. n

cessors, was against the action ; Cockayne, J., favored it. Bab- ington, C.J., at first agreed with Cockayne, J., but was evidently shaken by the remark of Martin, J.: "Truly, if this action is maintained, one shall have trespass for breach of any covenant ^ in the world," for he then said : "Our talk is idle, for they have not demurred in judgment. Plead and say what you will, or demur, and then it can be debated and disputed at leisure." The case went off on another point.^ Martin, J., appears finally to have won over the Chief Justice to his view, for, eight years later, we find Babington, C.J., Martin and Cotesmore, JJ., agreeing in a dictum that no action will lie for the breach of a parol promise to buy a manor. Paston, J., showed an inclination to allow the action.^ In 1435 he gave effect to this inclination, holding, with Juyn, J., that the defendant was liable in an action on the case for the breach of a parol promise to procure certain releases for the plaintiff.* But this decision was ineffectual to change the law. Made without a prece- dent, it has had no following. The doctrine laid down in the time of Henry IV. has been repeatedly reaffirmed.^

The remaining actions on the case for deceit before mentioned may now be considered. In the first of these cases the writ is

1 Covenant was often used in the old books in the sense of agreement, a fact some- times overlooked, as in Hare, Contracts, 138, 139.

  • V. B. 3 H. VI. 36, pi. 33. One of the objections to the count was that it did not

disclose how much the defendant was to have for his work. The remarks of the judges and counsel upon this objection seem to have been generally misapprehended. Holmes, Common Law, 267, 285; Hare, Contracts, 162. The point was this: Debt would lie only for a sum certain. If, then, the price had not been agreed upon for building the mill, the millwright, after completing the mill, would get nothing for his labor. It could not, therefore, be right to charge him in an action for refusing to throw away his time and money. Babington, C.J., and Cockayne, J., admitted the force of this argument, but the latter thought it must be intended that the parties had deter- mined the price to be paid. There is no allusion in the case to a quid pro quo^ or a consideration as a basis for the defendant*s promise. Indeed, the case is valueless as an authority upon the doctrine of consideration.

« Y. B. II H. VI. 18, pi. 10, 24, pi. I, 55, pi. 26. ♦ Y. B. 14 H. VI. 18, pi. 58.

6 Y. B. 20 H. VI. 25, pi. II, per Newton, C.J. f Y. B. 20 H. VI. 34, pi. 4, per Ayscoghe, J.; Y. B. 37 H. VI. 9, pi. 18, per Moyle, J. ; Y. B. 2 H. VII. 11, pi. 9, and Y. B. 2 H. VII. 12, pi. 15, per Townsend, J. ; 18 H. VII. Keilw. 50, pL 4, per curiam ; Doct. & St. Dial. II. c. 24 ; Coggs v, Bernard, 2 Ld. Ray. 909, 919, per Lord Holt; Elsee V. Gatward, 5 T. R. 143. Newton, C.J., said on several occasions (Y. B. 19 H. VI, 24 b, pi. 47 ; Y. B. 20 H. VI. 34, pi. 4; Y. B. 22 H. VI. 43, pi. 28) that one who bargained to sell land for a certain sum to be paid might have debt for the money, and, therefore, on the principle of reciprocity, was liable in an action on the case to his debtor. But this view must be regarded as an idiosyncracy of that judge, for his pre- mise was plainly false. There was no quid pro quo to create a debt.