270. In General.
270. Ordinarily, a person can only maintain an action ex contractu against another by proving a contract in fact. There are circumstances, however, under which the law will create a fictitious promise for the purpose of allowing the remedy by action of assumpsit. The obligation is not a contract, but a quasi contract. It may be founded -
(a) Upon the judgment of a court.
(b) Upon a statutory, official, or customary duty.
(c) Upon the principle that no one ought unjustly to enrich himself at the expense of another.
As we have seen in treating of the nature of contract, every true contract involves, not only obligation, but agreement. If there is no agreement, there can be no true contract. There may be an obligation, but, unless this obligation is imposed by the free consent of the parties, the obligation is not a contractual obligation.
There are, however, as has been stated, certain obligations which arise neither from tort nor from contract, but which are imposed or created by law without the assent of the party bound, and which are allowed to be enforced by an action ex contractu. These obligations are not contract obligations, for there is no agreement, but they are clothed with the semblance of contract for the purpose of remedy. They are described by the term quasi contracts.1
1 Anson, Cont. (8th Ed.) 361 et seq.; Keener, Quasi Cont. c. 1; Dusenbury v. Speir, 77 N. Y. 150. See, also, Lawson's Ex'rs v. Lawson, 16 Grat (Va.) 230, 80 Am. Dec. 702; Sceva v. True, 53 N. H. 627; Montgomery v. Waterworks Co., 77 Ala. 248; Schaeffer v. Miller, 41 Mont. 417, 109 Pac. 970, 137 Am. St. Rep. 746. The term "constructive contract" is also used to describe such obligations created by law. HERTZOG v. HERTZOG, 29 Pa. 465, Throckmorton Cas. Contracts, 5. See "Contracts," Dec. Dig. (Key-No.) §§ 5, 27; Cent. Dig. §§ 7, 121-152.
For example, obligation may arise from the judgment of a court of. competent jurisdiction ordering something to be done or forborne by one party in respect to another. It may arise from entry of judgment by consent of the parties, in which case the element of agreement is present; but, on the other hand, it may arise against the will of the party bound thereby, in which case there is no element of agreement, and therefore no true contract. Such an obligation is quasi contractual.2 As we have seen, however, in the classification of contracts, it is usual to divide contracts into simple contracts, contracts under seal, and "contracts of record," under which are included judgments.3
Again, if A. has paid something which B. ought to pay, or if B. has received something which A. ought to receive, the law imposes on B. the duty to make good to A. the advantage to which A. is entitled. Or if A. has obtained money from B. through the medium of oppression, imposition, extortion, or deceit, or by the commission of a trespass, such money may be recovered back, for the law imposes a duty on the wrongdoer to restore it to the rightful owner, although this was the very opposite of his intention.4
It is obvious that the duty of B. in such cases is not contractual. Nevertheless, in the classification of contracts, it has been usual to divide simple contracts into (1) express contracts; (2) contracts implied in fact; and (3) contracts implied in law. Under this classification the term "contracts implied in fact" is applied to contracts in which the agreement of the parties is evidenced by their conduct, and which are true contracts, in distinction to contracts in which the agreement is evidenced by words and which are said to be express; and the term "contract implied in law" is applied to obligations created by law,5 or quasi contracts. "This treatment of quasi contract," says Professor Keener, "is, in the opinion of the writer, not only unscientific, and therefore theoretically wrong, but is also destructive of clear thinking, and therefore vicious in practice. It needs no argument to establish the proposition that it is not scientific to treat as one and the same thing an obligation that exists in every case because of the assent of the defendant, and an obligation that not only does not depend in any case upon his assent, but in many cases exists notwithstanding his dissent." 6
2Keener, Quasi Cont 16; State of Louisiana v. Mayor, etc., of City of New Orleans, 109 U. S. 285, 3 Sup. Ct. 211, 27 L. Ed. 936; O'BRIEN v. YOUNG.. 95 N. Y. 428, 47 Am. Rep. 64, Throckmorton Cas. Contracts, 36; Rae v. Hul-bert, 17 I11. 572; Morse v. Tappan, 3 Gray (Mass.) 411; Gutta-Percha & R. Mfg. Co. v. City of Houston, 108 N. Y. 276, 15 N. E. 402, 2 Am. St. Rep. 412: Morley v. Lake Shore & M. S. Ry., 146 U. S. 162, 13 Sup. Ct. 54, 36 L. Ed. 925; ante, p. 8. See "Contracts," Dec. Dig. (Key-No.) §§ 1-5; Cent. Dig. §§ 1-7.
3Ante, p. 58.
4 See Dusenbury v. Speir, 77 N. Y. 150. See "Contracts," Dec. Dig. (Key-No.) § 5; Cent. Dig. § 7.
5 Chudnovski v. Eckels, 232 I11. 312, 83 N. E. 846. See "Contracts," Dec. Dig. (Key-No.) § 5; Cent. Dig. § 7.
The explanation of this anomalous classification, which includes obligations created by law among contracts, is to be found in the law of remedies.7 The only forms of action at common law were actions of tort and actions of contract. Obligations created by law resemble true contracts, in that "the duty of the obligor is a positive one; that is, to act. In this respect they both differ from obligations the breach of which constitutes a tort, where the duty is negative; that is, to forbear."8 This and other considerations suggested the analogy of contract, rather than of tort, and made it natural, when seeking to adapt the remedy to the right, to treat obligations created by law as contracts rather than torts. An action of debt was the remedy for breach of contract based on executed consideration, where such breach resulted in a liquidated or ascertained money claim, and also where a statute or the common law or custom laid a duty upon one to pay an ascertained sum to another. Assumpsit was primarily an action to recover an unliquidated sum, or such damages as the breach of a promise had occasioned to the promisee.9 Owing to certain inconveniences attaching to the action of debt, assumpsit was preferred to debt as a form of action, and by degrees the scope of the action was enlarged, until the action of assumpsit came to be used instead of debt, where the contract resulted in a liquidated claim, and a money debt was stated in the form of an assumpsit or undertaking to pay it. Thus it came about that an action might be maintained in assumpsit on a liquidated claim or debt; and when the breach of a contract resulted in such a claim, the plaintiff was allowed to declare in the form of a short statement of the debt, based upon a request by the defendant, as for goods sold, money lent, work and labor supplied, etc.10 This enabled claims arising from contract to be variously stated in the same suit "as a special agreement which had been broken, and as a debt resulting from an agreement, and hence imparting a promise to pay. Such a mode of pleading was called an indebitatus count, or count indebitatus assumpsit." 11 The promise in such cases, resulting from the terms of the agreement, although only by an innovation in the form of remedy made the basis of an assumpsit, was actual, and not a mere fiction.12 The form of action thus evolved, however, came to be applied to those kinds of legal liability which had previously given rise to an action of debt, though void of the element of agreement. In these cases the form of remedy could be adapted to the right only by means of a fiction, for to support assumpsit it was necessary to allege a promise, and consequently, to meet the difficulty, the courts adopted the fiction of a promise, and it was declared that a promise was "implied in law." 13 It was in this way that these obligations became clothed with the semblance of, and came to be classed as, contracts. "For the convenience of the remedy," they "have been made to figure as though they sprung from contract, and have appropriated the form of agreement." 14
6 Keener, Quasi Cont. 3.
7 See Keener, Quasi Cont. c. 1; Anson, Cont. (8th Ed.) 360-364; The History of Assumpsit, by Prof. J. B. Ames, 2 Harv. Law Rev. 1-19, 53-69.). Ill Select Essays in Anglo-American Legal History, 259.
82 Harv. Law Rev. 63, III Select Essays in Anglo-American Legal History, 292.
9 Anson, Cont (8th Ed.) 3G1.
10 Id. 362; Slade's Case, 4 Co. Rep. 92. See "Assumpsit, Action of," Dec Dig. (Key-No.) § 7; Cent. Dig. §§ 37-41. Clark Cont.(3d Ed.) - 4O
Quasi contracts fall under three classes:15 (1) Obligations founded upon a record, as a judgment; 16 (2) obligations founded upon a statutory,17 or official, or customary duty;18 and (3) obligations founded "upon the fundamental principle that no one ought unjustly to enrich himself at the expense of another," 19
11 Anson, Cont. (8th Ed.) 362.
12 See 2 Harv. Law Rev. 56, III Select Essays in Anglo-American Legal History, 285.
13 Keener, Quasi Cont. 4-5.
14 Anson, Cont (8th Ed.) 362.
15 2 Harv. Law Rev. 64, III Select Essays in Anglo-American Legal History, 293; Keener, Quasi Cont. c. 1; Woodward, Quasi Cont. 1.
16 Ante, p. 60.
17 Keener, Quasi Cont. 16; State of Louisiana v. Mayor, etc., of City of New Orleans, 109 U. S. 285, 3 Sup. Ct. 211, 27 L. Ed. 936; O'BRIEN v. YOUNG, 95 N. Y. 428, 47 Am. Rep. 64, Throckmorton Cas. Contracts, 36; Rae v. Hulbert, 17 I11. 572; Morse v. Tappan, 3 Gray (Mass.) 411; Gutta-Percha & R. Manuf'g Co. v. City of Houston, 108 N. Y. 276, 15 N. E. 402, 2 Am. St. Rep. 412; Pacific Mail S. S. Co. v. Joliffe, 2 Wall. 450, 17 L. Ed. 805. Illustrations of such an obligation arise where a statute imposes a duty upon one county or parish to pay another for money expended in the support of a pauper; or under any other circumstances declares that one person may recover from another money paid out by him for the benefit of the latter; or where a statute allows an action to recover usury paid, or money lost and paid on a wager. See "Contracts;' Dec. Dig. (Key-No.) § 27; Cent. Dig. §§ 121-182.
18 See Keener, Quasi Cont. 17, 18.
19 2 Harv. Law Rev. 64, III Select Essays in Anglo-American Legal History, 293; Bloomington Tp. Bd. of Highway Com'rs v. City of Bloomington, 253 I11. 164, 97 N. E. 280, Ann. Cas. 1913A, 471. See "Contracts," Dec. Dig. (Key-No.) §§ 5, 27; Cent. Dig. §§ 7, 121-132.
as the obligation to repay money paid under a mistake or under duress or compulsion, the obligation of an infant to pay for necessaries, the obligation to pay for benefits conferred under a contract unenforceable because within the statute of frauds which the party who has received the benefit refuses to carry out, the obligation to pay for benefits conferred under a contract where full performance is prevented.
Within the third class are embraced the most important cases of quasi contractual obligation, and the brief discussion which follows will be confined to cases within that class.