Peter Vivian Daniel

“ Hence, it has been ruled, that where a person who had covenanted to perform certain work had failed or refused to fulfil his covenant, but had afterwards, upon the parol engagement of the covenantee, or by his acts, amounting in law to an engagement, gone on, in whole or in part, to do the work, he might recover the value of the work in assumpsit upon a quantum meruit. So, too, between partners, though articles of copartnership have been sealed between them, yet, upon an account stated, and a balance struck, assumpsit will lie. ”

“ The principles, that the best evidence the nature of the case admits of must always be produced, and that a person shall not be affected by that which is res inter alios acta, are too familiar to require authorities to support them. ”

“ But presumptions can stand only whilst they are compatible with the conduct of those to whom it may be sought to apply them; and still more must give place, when in conflict with clear, distinct and convincing proof. 3 Bac. Abr. 318, H, Presumptive Proof; 4 Stark. Evid. 53. The letter of the plaintiff, Fresh, delivered to the agent of the defendants, more than two years anterior to the alleged payment of the orders drawn by Barret, fully accords with the character of the proof just described ”

“ These authorities, to which many more might added, are full and express to the point, that where a deed is the foundation of the claim, and can still be regarded as subsisting and in full force between the parties, the action to enforce its provisions must be upon the instrument itself. ”

“ These orders are obnoxious to even stronger objections than those existing against the former orders drawn by Barret; they not only, like the former, were never (as is admitted) shown to or acknowledged by the plaintiff, but they carry on their face no receipt or other semblance of payment, nor is proof attempted aliunde, that the defendants have given, or are bound to give, any consideration for them. The circuit court should have excluded these papers also. ”

“ The proceedings instituted in this case, although commencing by an attachment, and upon what is termed a short note, in lieu of a formal declaration, assume, nevertheless, the essential character, and in some respects, the usual forms of the action of assumpsit, and must be governed by the rules applicable to such an action. ”