This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The right to waive tort and sue in assumpsit is limited in some jurisdictions to torts affecting property, whereby one is enriched by receiving property or its proceeds which in good conscience belong to another. It has there no application to other forms of tort. If A has by duress compelled B to work for him, B cannot recover from A on an implied contract. Thus a convict who has been compelled to work on Sundays and holidays for the person hiring him has been denied the right to recover from such person on an implied contract, even though the statute specifically provided that a convict should not be compelled to work on Sundays and holidays.1 A represented to B that he had adopted her as his daughter, and thus he induced her to render domestic services for him. It was held that she could not recover for work and labor.2 If a man represents himself as single and thus induces a woman to marry him, live with him, and perform domestic services for him, it has been held that she cannot recover in assumpsit for such services, and that her remedy is in tort.3 A consideration of these cases will show that if it is ever in accordance with principles of justice to waive tort and sue in quasi-contract, cases like these are the very ones where such right should be recognized. Accordingly in some states a juster view permits such recovery, as in the case of a woman who renders domestic services to a man, being induced by his fraud to believe that they were married.4
6Beecher v. Duffield, 97 Mich. 423; 56 N. W. 777; Conkling v. Tuttle. 52 Mich. 630: 18 N. W. 391; Dalton v. Laudahn. 30 Mich. 349.
1 Chicago v. Milling Co.. 196 111. 580; 63 N. E. 1043; affirming 97 111.
App. 651. (Even if such contract is invalid.)
2 Austin v. Whipple, 178 Mass. 155; 59 N. E. 636.
3 Walker v. Houghteling. 107 Fed. 619; 46 C. C. A. 512.
1 Sloss, etc., Co. v. Harvey, 116 Ala. 656; 22 So. 994.
2 Graham v. Stanton, 177 Mass. 321; 58 N. E. 1023.
3 Cooper v. Cooper, 147 Mass. 370; 9 Am. St. Rep. 721; 17 N. E. 892.
4Schmitt v. Schneider, 109 Ga. 628; 35 S. E. 145; Fox v. Dawson, 8 Mart. (La.) 94; Higgins v. Breen, 9 Mo. 497; Knott v. Knott (N. J. Eq.), 51 Atl. 15.