1 Aspdin v. Austin, 5 Q. B. 685; Dunn v. Sayles, ib. 685; Sampson v. Easterby, 9 B. & C. 505; 6 Bing. 644; Saltoun v. Houstoun, 1 Bing. 433; Duke of St. Albans v. Ellis, 16 East, 352; Earl of Shrewsbury v. (iould 2 B. & Al 487.
2 Aspdin v. Austin, 5 Q. B. 684; Dunn v. Sayles, 5 Q. B. 685; Pilking-ton v. Scott, 15 M. & W. 657.
3 Aspdin v. Austin, 5 Q. B. 671. But see Regina v. Welch, 2 El. & B. 357; Emmens v. Elderton, 4 H. L. Cas. 624. In this case Crorapton, J., said: "The cases of Aspdin v. Austin, 5 Q. B. 671, and Dunn v. Sayles, lb. 685, must, I think, be considered as decided upon the construction of will be sustained.1 Thus, an action for money had and .received will lie upon a promissory note or bill of exchange, and a declaration on the special agreement is unnecessary.2 So, where the illegality of consideration invalidates an express agreement to pay a just debt, antecedently due, a promise will be implied to pay the debt founded upon the original consideration. Thus, where an agreement was made, by which an attorney was to receive for his services ten per cent upon the sum recovered, although the agreement was void from champerty, it was held, that he might recover, upon a quantum meruit, for his services up to the time when the agreement was entered into.3 But if an express contract be avoided on account of fraud, no contract will be implied in contradiction thereof, because no person can be presumed to have made an implied promise at variance with his express agreement.4 If, therefore, money have been advanced or goods parted with upon a fraudulent contract, the plaintiff should treat it as a nullity,5 and bring an action of trover to recover the money or the goods, or an action for money had and received to recover the money. For, by bringing an action of assumpsit on the contract, he affirms it, and destroys the very ground for recovery.6
§ 20. But when the terms of a written contract are incomplete, so as to work an injury to one of the parties, if strictly construed, the law will imply such stipulations as would be necessary to carry into effect the manifest intentions of the parties, and the essential objects of the contract. Thus, if a workman contract to work for his employers for a period of twelve months, with a stipulation that he will work for no one else during that time, and in consideration of his good and faithful services, his employers agree to pay him such wages as the articles he makes shall be worth, at the usual prices for similar work, - the law will imply a stipulation to find reasonable work and employ the workman during such time.1 If it be "agreed' between A. and B. that B. shall pay A. a sum of money for his lands on a particular day, this amounts to an implied contract by A. to convey the lands to B., since "agreed "is the word of both.2 So an agreement by B. to "furnish" F. a stated quantity of ore, raises an implied contract in F. to accept the ore.3
§ 21. So, if there be a failure of consideration to support the express contract, or if it be determined by the occurrence of some event provided for in its terms, then an implied undertaking may be raised. So, if the express promise be merely coextensive with the implied contract, an action upon either the particular covenants, and the peculiar circumstances appearing in those cases. If they are to be taken as deciding that there is no obligation on the part of the employer to continue the relation between the parties in cases like the present, or that, where there is an agreement to employ and serve for a specified time, at a specified salary, an action is not maintainable against the employer immediately for a wrongful termination of the relation, but that the party discharged, instead of suing for damages immediately, must wait, and remain idle for the specified period, and then sue for the salary as a sum certain, I should think that they ought not to be supported in a court of error."
1 Regina v. Welch, supra; Pilkington v. Scott, 15 M. & W. 657. But see Elderton v. Emmens, supra.
2 Pordage v. Cole, 1 Saund. 319 I. And see Richards v. Edick, 17 Barb. 261.
3 Barton v. McLean, 5 Hill, 256. And see Whidden v. Belmore, 50 Me. 360 (1863); Mclntyre v. Belcher, 14 C. B. (n. s.) 654.