Page:Harvard Law Review Volume 2.djvu/77

 THE HISTORY OF ASSUMPSIT 59

Court in a similar case were of opinion that an action lay if the party either before or after the services rendered promised to pay for them, "but not without a special promise.'*^ In Nichols v. More 2 (1661) a common carrier resisted an action for negligence, because, no price for the carriage being agreed upon, he was without remedy against the bailor. The Court, however, answered that therefore shall be charged."^ As late as 1697, Powell, J., speak- ing of the sale of goods for so much as they were worth, thought it worth while to add : " And note the very taking up of the goods implies such a contract."*
 * • the carrier may declare upon a quantum meruit like a tailor, and

The right of one, who signed a bond as surety for another with- out insisting upon a counter bond or express promise to save harmless, to charge his principal upon an implied contract of in- demnity, was developed nearly a century later. In Bosden v, Thinne^ (1603) the plaintiff at the defendant's request had exe- cuted a bond as surety for one F, and had been cast in a judgment thereon. The judges all agreed that upon the first request only Assumpsit did not lie, Yelverton, J., adding: ** For a bare request does not imply any promise, as if I say to a merchant, I pray trust J. S. with £\QO, and he does so, this is of his own head, and he shall not charge me, unless I say I will see you paid, or the like." The absence of any remedy at law was conceded in 1662.^ It was said by Buller, J., in Toussaint v, Martinnant,^ "that the first case in which a surety, who had paid the creditor, succeeded in an action at law against the principal for indemnity, was before Gould, ).,• at Dorchester, which was decided on equitable grounds." The in- novation seems to be due, however, to Lord Mansfield, who ruled in favor of a surety in Decker v. Pope, in 1757, "observing that when a debtor desires another person to be bound with him or for him, and the surety is afterwards obliged to pay the debt, this is a sufficient consideration to raise a promise in law."^

The late development of the implied contract to pay quantum

1 Thursby v, Warren, W. Jones, 208.

2 I Sid. 36. See also Boson v, Sandford (1689), per Eyres, J.

supra^ II, n. 2.
 * The defendant's objection was similar to the one raised in Y. B. 3 H. VI. 36, pi. 33,


 * Hayward v. Davenport, Comb. 426. * Yelv. 40.

T 2 T. R. 100, 105. * Justice of the Common Pleas, 1763-1794. » I Sel. N. P. (13 ed.) 91.
 * Scott V. Stephenson, i Lev. 71, i Sid. 89, s. c. But see Shepp. Act on Case (2 ed.) 49.