Civil Procedure > Civil Procedure Keyed to Friedenthal > The Development Of Modern Procedure
Citation. 76 ER 1072, Volume 76
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Brief Fact Summary.
Plaintiff had a field of wheat and rye and sowed the wheat and rye. Plaintiff alleged that Defendant promised to pay Plaintiff 16 if Plaintiff specially sowed and grew into blades the wheat and rye in question. Plaintiff sued Defendant for non-payment of the 16 pounds.
Synopsis of Rule of Law.
An action in assumpsit does not require a formal written contract so long as there is a mutual reciprocal agreement between the parties and one of the parties’ performs. It does not matter that both promises are executory.
Slade, Plaintiff, alleged that Morley, Defendant asked Plaintiff to sow wheat and rye and grow it into blades for Defendant. Defendant in turn allegedly promised to pay 16 pounds to Plaintiff. Plaintiff grew the wheat and rye. Plaintiff then sued Defendant for non-payment. Defendant argued that there was no contract to perform, just the bargain made between Plaintiff and Defendant. In addition, Defendant argued he did pay 16 pounds to Plaintiff. A jury returned a special verdict, finding Defendant paid Plaintiff for the wheat and the rye and that there was no other promises made between Plaintiff and Defendant other than the bargain in question. The issue was presented to the Justices and Barons to resolve differences between the courts regarding the issue.
Can Plaintiff maintain an action against Defendant in assumpsit if Plaintiff made a promise to sow and grow the wheat and rye and Defendant agreed to pay 16 pounds for said wheat and rye even if there was no formal contract?
If two parties make mutual executory promises, which both require reciprocal performance, then the performing party has an action against the non-performing party in assumpsit.
The action of the performing party must be maintained not just on the one instance of non-payment but on the whole debt, to make sure that another action will not be brought on the same contract.
Defendant cannot argue that he paid Plaintiff if he does not have any witnesses.
This case demonstrates that actions on debt categorized as assumpsit did not have to comply with the formal requirements of actions on contracts so long as there was one performing party.