58 HARVARD LAW REVIEW.
defendant being so indebted promised to pay. * This was the origin of the common counts.
In all the cases thus far considered there was a definite bargain or agreement between the plaintiff and defendant. But instances, of course, occurred in which the parties did not reduce their trans- actions to the form of a distinct bargain. Services would be ren- dered, for example, by a tailor or other workman, an innkeeper or common carrier, without any agreement as to the amount of com- pensation. Such cases present no difficulty at the present day, but for centuries there was no common-law action by which com- pensation could be recovered. Debt could not be maintained, for that action was always for the recovery of a liquidated amount^ Assumpsit would not lie for want of a promise. There was con- fessedly no express promise ; to raise by implication a promise to pay as much as the plaintiff reasonably deserved for his goods or services was to break with the most venerable traditions. The lawyer of to-day, familiar with the ethical character of the law as now administered, can hardly fail to be startled when he discovers how slowly the conception of a promise implied in fact, as the equivalent of an express promise, made its way in our law.
There seems to have been no recognition of the right to sue upon an implied quantum meruit before 1609. The innkeeper was the first to profit by the innovation. Reciprocity demanded that, if the law imposed a duty upon the innkeeper to receive and keep safely, it should also imply a promise on the part of the guest to pay what was reasonable.^ The tailor was in the same case with the innkeeper, and his right to recover upon a quantum meruit was recognized in 1610.* Sheppard.* citing a case of the year 1632, says: ** If one bid me do work for him. and do not promise any- thing for it ; in that case the law implieth the promise, and I may sue for the wages." But it was only four years before that the
��1 " If I bring cloth to a tailor to have a cloak made, if the price is not ascertained beforehand that I shall pay for the work, he shall not have an action against me." Y. B. 12 Ed. IV. 9, pi. 22, per Brian, C. J. To the same effect, Young v. Ashbumham (1587), 3 Leon. 161 ; Mason v. Welland (1688), Skin. 238. 242.
2 " It is an implied promise of every part, that is, of the part of the innkeeper, that he will preserve the goods of his guest, and of the part of the guest, that he will pay all duties and charges which he caused in the house." Warbrooke v. Griffin, 2 Brownl. 254, Moore, 876, 877, s. c.
8 Six Carpenters' Case, 8 Rep. 147 a. But the statement that the tailor could recover in Debt is contradicted by precedent and following authorities.
- Actions on the Case (2 ed.), 50.
