Gunn v. Scovil

Baldwin, J. The question in this case is, whether the action of indebitatus assum/isit Can be supported, in this state, on the implied promise, arising merely fron% [231] use and occupation1 of real estate, by permission, and ' without an express promise to pay rent ? It is agreed, that this action is now in constant use in England; but it is contended, on the part of the defendant, that it is there sustained solely by force of the stat. of l\ Geo. II.; and on the part of the plaintiff, that that statute is merely in affirmance of the common law. As we have no statute on the subject, it is agreed, if the action is sustained here, it must be on common law principles. If we resort to the English authorities, we find the cases there decided, before'the statute, exhibit so much doubt and uncertainty on this question, as to furnish sufficient ground for the interference of the legislature. Some of the cases cited in the argument, exhibit attempts to recover in indebitatus assumpsit, when rent was actually reserved by lease, under hand and seal, by which the simple contract was absorbed in the specialty. Wherever this appeared, or might be inferred, the court uniformly decided that the action could not be sustained.(a) They would so decide now. The statute has made no difference in this respect. Another class of cases consider the question, whether a recovery can be had in this action, upon an express promise, but without deed, to pay a specific rent. In such cases indebitatus assumpsit was generally sustained before the statute,(b) but not without strong opposition from some of the judges, on the ground that the contract savoured of 'the realty, and that debt was the proper remedy ;(c) and sometimes the decision was, that debt was the only remedy.(d) An express promise by parol to pay a quantum meruit for the use, has been repeatedly adjudged good ground for recovery ⅛ this action; for, as it was anciently held, the sum being uncertain, debt would not lie, nor could [232] there be a distress, and unless thiswction could be sss-tained, the party would be without remedy .(a) Whether from use and occupation by permission, the law will raise the promise, and support indebitatus as-sumfcsit, seems to be a question of more doubt. The ease of How v. Norton, as reported, 1 Lev 179. seems to support the action, but from the same case, as reported in Sid. 279. it appears that the court sustained the action, because, after verdict, they would presume an express promise proved. In the case of Acton v. Symon, Cro. Car. 415. assumpsit was supported on an express promise, though Croke, J. doubted, because the personal contract was determined by the lease on which the plaintiff might have debt. In the decision of that case, the court incidentally decided, that the law does not raise a promise in such case; it must be express. Such dicta are often found; and most of the elementary writers have asserted, that an action cannot be supported on the implied promise. Yet I presume no case can be found expressly in point, where this naked question has been presented to the consideration of the court. Wooddeson (vol. 3. p. 152.) acknowledges he knows of no solemn decision in pointy but insists that such promise may well be implied, though he agrees it was anciently said it could not. From a review of the whole, it appears, that though anciently the action of debt was conceived to be the only-proper remedy to recover rent in any shape ; yet, as the action of assum/isit has gradually taken the place of debt on simple contracts, it has been permitted in lieu of debt, in the first place, on a promise of a specific sum for rent, and afterwards on a specific promise to pay for the use of real estate as much as it was worth. *' For,” (as Wood-deson says,) “ there being no certain rent, the plaintiff could neither distrain, nor properly, perhaps, bring an [233] actionbf debt, this seems the plaintiff’s genuine remedy; if, therefore, it may be allowed at all,” (he adds,) “ the promise may well be implied.” The action of indebitatus assumpsit is a remedy highly favoured in law, being equally beneficial to both parties. In its principles it is founded in equity, and the benefits resulting from it have constantly, from experience of its utility, been extended. This has ever been deemed the proper remedy to recover on an implied promise for the use of personal property. It certainly is equally reasonable and equitable that he who enjoys, by my permission, the use of my lands, should also in the same manner be liable to pay for that use. Technical rules alone can prevent it, and that because the subject is real property. We may, then, well inquire, is the distinction founded in reason? If it is, the same objection will equally apply to a special parol contract, on which this action has; often been supported. Thus, it appears to me, that since the use of this ac-\ tion has of late been greatly extended, it would, on fair a common law principles, now be sustained in England, if4 no statute existed. But, if I am wrong in this conclusion, it will not follow that the action cannot be supported here. Our adoption of their system admits of reasonable exceptions. No decisions in this state have been produced to show that the action cannot be maintained ; and I understand it has long been used in such cases without a question. It has once, (in the case of Rogers v. Tracy, 1 Root, 233.) when opposed, been supported by the superior court, and the implied promise expressly recog-nised. Unless this remedy can be had, it is agreed the plaintiff has none. When a convenient remedy, which appears adequate, reasonable, and proper, has thus been introduced and pursued, we ought to be compelled by imperious reasons, before we deprive a party of it, and thus deny him all redress. [234] I am therefore of opinion, that the law is so in Coas-necticut, that indebitatus assumfisit can be supported, on the implied promise arising merely from use and occupation of real estate by permission; and, of course, that we ought to advise a new trial, The other judges severally concurred in this opinion#'' New trial to be granted. Footnotes [(a)] Cro. Eliz. 242. Cro. Car. 343. Alleyn, 29. Hutt. 34. [(b)] Cro. Jac. 598. Cro. Eliz. 118. Cases cited in Cro. Car. 343. 415. [(c)] Cro. Car. 415. Cro. Eliz. 859. [(d)] Cro. Eliz. 786. [(a)] 3 Mod. 73, Skin. 238. 242.