Luman Case v. Berry

Prentiss, Ch. J. pronounced the opinion of the Court. — That assumpsit lies here for rent or the use of land, where there is either an express or implied promise, is settled by the case of Howard vs. Ransom, 2 Aik. Rep. 252; but it by no means follows that an action on book account can be sustained for rent. Though the action on book is in many cases a concurrent remedy with *assumpsit, and can be sustained only where assumpsit will lie, there are numerous cases in which it will not lie where assumpsit may be maintained. It has been decided in several instances in this state, that rent cannot be charged on boob, and recovered in this form of action; and policy does not require us, nor do we feel at all disposed, if we were at liberty so to do, to extend the action beyond the limits prescribed to it by former decisions. We do not mean to say, however, that rent or the use of land can under no circumstances be an admissible charge on book. The course of dealings between the parties may shew that it was intended to be a matter of account between them, and to be entered and adjusted on book ; as where there are mutual dealings and accounts, and on one side charges are made of articles or services, delivered or rendered, and intended to apply, in payment of rent charged on the other. But in the present case, there are no such circumstances to take the case out of the general rule. The defendant presented no account; and it appeared that all the items in the plaintiff’s account, except the rent, had been paid and satisfied. Judgement a'ffirmed.