Moulton v. Loux

argued that the evidence showed that the plaintiff did not expend the money for the defendant’s use. A. L. Hart and Creed Haymond, for the Respondent. The defendant having broken his contract, the plaintiff might have maintained his action for damages for the breach thereof, or he was at liberty to waive the tort, treat the contract as rescinded, and maintain his action on the common counts for money laid out and expended and for labor performed. (Parsons on Contracts, 5th ed. pp. 678, 679; Keys v. Harwood, 2 C. B. 905; Planche v. Colburn, 8 Bing. 14.) [83] Whenever a contract of any hind has been abandoned by mutual consent, or has been rescinded by some act of the defendant, the plaintiff may resort to the common counts alone for remuneration for what he has done under the contract. (2 Grreenleaf on Evidence, secs. 101, 102,103, 104, et seq.') By the Court : The action is not brought for damages upon a breach of the express contract referred to in the evidence. The plaintiff relies only on the common count for money paid, laid out, and expended by him at the request of the defendant. It was always necessary, under this form of pleading, to establish the request, either directly or presumptively, by proof of circumstances from which a request could be implied. (Lightfoot v. Creed, 2 Moore’s R. in Ct. of Com. Pleas and Exch. Ch. p. 255.) But in this case it was expressly agreed between Moulton and defendant, that the latter should not be called upon to pay the moneys about to be expended by the former, and for the recovery of which this action is brought. Thus, the plaintiff testified as follows concerning the agreement: “Q. Was there anything said about his (Loux) having to pay any of the expenses? “ A. Oh, the understanding was that he was not to pay the expenses. “ Q. That he was not to pay any? “ A. That he was not to pay anything, in consideration of the fact that we used his name in the suit and had the use of his land.” In view of this condition of things, to infer a request upon the part of the defendant or a promise by him to repay these moneys would be to go against the positive evidence of the circumstances in which the transaction originated, and it is plain that the subsequent breach of the express contract by the defendant, if such occurred, would not characterize the expenditures theretofore made by the plaintiff as expenditures made at the request of the defendant. If the plaintiff sustained damages by the breach of that contract, he should have counted upon [84] that breach as his cause of action—this would certainly be so as long as the contract remained obligatory between the parties, and if the plaintiff has, as he claims, rescinded the contract in consequence of its breach by the defendant, that circumstance certainly would not tend to establish that the moneys expended by the plaintiff in pursuance of the contract, and while it was in force, were expended at the request of the defendant. Judgment and order denying a new trial reversed, and cause remanded for a new trial.