I cannot assent. It has been said, that where one person is benefited by the payment of money by another, the law raises an assumpsit against the former; but that I deny: if that were so, and I owed a sum of money to a friend, and an enemy chose to pay that debt, the latter might convert himself into my debtor [creditor] nolens volens."..."I admit that where one person is surety for another, and compellable to pay the whole debt, and he is called upon to pay, it is money paid to the use of the principal debtor, and may be recovered in an action against him for money paid, even though the surety did not pay the debt by the desire of the principal."See also Kemp v. Finden, 12 M. & W. 421; Prior v. Hembrow, 8M.&W. 873.
1 Geopel v. Swinden, 13 Law Jour. (n. s.) Q. B. 113; Edger v. Knapp, 6 Scott, N. R. 707; 5 Man. & Grang. 753; Holmes v. Williamson, 6 M. & S. 158.
2 Putnam v. Field, 103 Mass. 556 (1870), distinguishing French v. Fuller, 23 Pick. 108. And see Frost v. Gage, 1 Allen, 262; Mellen v. Whipple, 1 Gray, 317.
3 Butterworth v. Gould, 41 N. Y. 450 (1869). And see Patrick v. Met-calf, 37 N. Y. 332; Exchange Bank v. Rice, 107 Mass. 37 (1871). Bradley v. Root, 5 Paige, 632; and New York Ins. Co. v. Roulet, 24 Wend. 505, incline the other way.
4 In respect to the effect of usage in modifying a contract, see post, § 791.
5 Lewis v. Marshall, 8 Scott, N. R. 846; 7 Man. & Grang. 729; Spicer v. Cooper, 1 Q. B. 424; Sweet v. Lee, 3 Man. & Grang. 466; Trueman v. Loder. 11 Ad. & El. 589; Blaekett v. R. E. Ins. Co., 2 Tyrw. 266; 2 C. & J. 244; The Bridgeport Bank v. Dyer, 19 Conn. 140.
1 Wood v. Wood, 1 C. & P. 59; Moore v. Voughton, 1 Stark. 487; Scott v. Irving, 1 B. & Ad. 605; Chitty on Cont. 20; Stewart v. Aberdein, 4 M. & W. 211; The Reeside, 2 Sumner, 569; Macomber v. Parker, 13 Pick. 182; Sewall v. Gibbs, 1 Hall, 612.
2 The Bridgeport Bank v. Dyer, 19 Conn. 137. See also Bodfish v. Fox, 23 Me. 90.
3 Cunningham v. Fonblanque, 6 C. & P. 44; Hall v. Benson, 7 C. & P. 711.
4 Bruce v. Hunter, 3 Camp. 467; Eaton v. Bell, 5 B. & Al. 34; Chitty on Cont. 22; post, § 794 to 801.
5 Swancott v. Westgarth, 4 East, 75; Gordon v. Swan, 2 Camp. 429, n. 6 McCune v. Norwich City Gas Co., 30 Conn. 521 (1862).
§ 18. These promises of law, however, only supply omissions, and do not alter express stipulations. The general rule is, that a contract will be implied only when there is no express contract, " expressum facit cessare taciturn."1 If, therefore, there be an express contract between the parties, the plaintiff, in an action to recover the consideration for work and labor done, or for money paid, must declare specially thereupon; and so long as that contract remains unrescinded, he cannot recover the value of his services upon a quantum meruit.2 Yet if the special contract be wholly abandoned, or its terms be varied by the mutual consent of the parties, the law implies a new promise.3 Thus, if work additional to that contemplated in the original contract be done at the request of the party benefited by it, he will be liable therefor, upon an implied promise to pay for it.4 So, also, where either party to an express contract is injured, or the labor or expense sustained by him in doing the work is enhanced by the neglect or omission of the other, an implied promise of indemnity therefor will arise, additional to the express agreement.5 So, also, if entire performance, according to the express agreement, be rendered impossible through the fault of either party, the party in fault will be liable on a quantum meruit, or other action on the case, the compensation being graduated as far as possible by the terms of the express contract.
1 Starke v. Cheeseman, Lord Raym. 538; Toussaint v. Martinnant, 2 T. R. 105; Whiting v. Sullivan, 7 Mass. 107; Cutter v. Powell, 6 T. R. 320; Cowley v. Dunlop, 7 T. R. 568; Cook v. Jennings, 7 T. R. 384; Chitty on Cont. 25; Trask v. Duvall, 4 Wash. C. C. 185; Moorsom v. Kymer, 2 M. & S. 316; Standen v. Chrismas, 10 Q. B. 135; Creighton v. Toledo, 18 Ohio St. 447; Harris v. Story, 2 E. D. Smith, 364; Churchward v. The Queen, Law R. 1 Q. B. 173 (1865); Hubbell v. Warren, 8 Allen. 173.
2 Rees v. Lines, 8 C. & P. 126; Selway v. Fogg, 5 M. & W. 83; Smith v. Smith, 1 Sandf. 206.
3 Goodrich v. Lafflin, 1 Pick. 57; Hill v. Green, 4 Pick. 114; 20 Am. Jur. 8.
4 Lovelock v. King, 1 Mood. & Rob. 60; Dubois v. Del. & Hud. Can. Co., 12 Wend. 334; Damon v. Granby, 2 Pick. 345; Hoadley v. McLaine, 4 Moo. & S. 340; Smith v. Smith, 1 Sandf. 206.
5 Lovelock v. King, 1 Mood. & Rob. 60; Dubois v. Del. & Hud. Can. Co., 12 Wend. 334; Damon v. Granby, 2 Pick. 345; Hoadley v. McLaine, 4 Moo. & S. 340; 10 Bing. 482. •
§ 19. Again, if in a written contract the words of recital or reference manifest a clear intention that the parties shall do certain acts not expressly stipulated, the courts have therefrom inferred a covenant to do such acts and have sustained actions of covenant for their non-performance, in like manner as if the instrument had contained express covenants to perform them.1 But where parties have made an express agreement to perform certain acts, it is not to be extended by implication, so as to embrace all other unstipulated acts, which may be either convenient or necessary to the perfect performance of their express covenants; for it may very naturally happen, and indeed such is the presumption, that, having expressed some, they have expressed all the conditions by which they intended to be bound, and that what is omitted forms as much a part of the intention as what is stipulated.2 Thus, where the plaintiff, by a written contract, agreed with the defendant to manufacture for the latter a certain quantity of cement, for which the latter agreed to pay him four pounds weekly during the two years following the date of the agreement, and five pounds weekly during the subsequent year, after which the defendant agreed to receive the plaintiff into partnership; and each party bound himself in a penal sum to fulfil the engagement, it was held, that the stipulation in the agreement did not raise an implied covenant that the defendant should continue the business and should employ the plaintiff therein during two or three years, but only, that he would pay weekly sums for three years to the plaintiff, on condition of his performing certain duties, and that so long as the plaintiff was ready and willing to perform them, he was entitled to recover such wages.3