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incidental

Ch. III. s. 1. cargo from the charterers : it was held that the words "expected,

Implied Contracts.

&c.,” amounted to a warranty, that the ship was then in such a position, that she might reasonably be expected to arrive at A. by

the day named (i). From circum- And where a party enters into an agreement, which can only stances connected with take effect by the continuance of a certain existing state of circumthe contract. stances, there is an implied engagement on his part that he will

not, of his own mere motion, do anything to put an end to that state of circumstances under which alone the agreement can be

operative (k). Not always But this principle will not be held to the extent that, where to express

parties have expressly agreed to do certain acts, they will be taken contracts.

to have impliedly agreed for every act convenient, or even necessary, for the perfect performance of their express agreements (1). And so, although there be an absolute agreement whereby a party is bound to do a certain act, which is incidental to or can only be done after the doing of another act: this is not to be taken as showing a clear intention, that such party means to bind himself to do that principal act, to which the thing he has absolutely

agreed to do was incidental (m). Implied con- And with regard to all the above cases this principle must be tracts exist

kept in view, namely, that promises in law exist only where there only in the absence of is no express promise between the parties : expressum facit cessare express contracts.

tacitum (n). A party, therefore, cannot be bound by an implied contract, when he has made an express contract as to the same subject matter, even although the latter be avoided by fraud. He may, it is true, repudiate the contract entirely on this ground;

but, if he sues the other party in contract at all, it must be on the The express

express contract (o). Thus, although the word " demise " implies “qualified a covenant for quiet enjoyment, yet it is qualified and restrained covenant for quiet enjoy- by an express covenant for quiet enjoyment (p), the effect of which

express covenant, as usually framed, is to deprive a tenant taking a lease from a landlord having no title of the right to sue for damages

ment.

(i) Corkling v. Massey (1873), L. R., 8 C. P. 395.

(k) Per Cockburn, L. C. J., Stirling v. Maitland, 5 B. & S. 840, 852, AI'Intyre v. Belcher (1868), 14 C. B., N. S. 654 ; and see Rhodes v. Porwood (1876), 1 App. Cas. 256 ; Turner v. Goldsmith, (1891] 1 Q. B. 544, C. A. ; Hamlyn v. Wood, [1891] 2 Q. B. 488, C. A.

(1) Per Cur., Aspdin v. Austin (1844), 5 Q. B. 671, 683.

(m) See Rashleigh v. South-Eastern Railway Company (1851), 10 C. B. 612, 632 ; Smith v. The Mayor, dic., of Harwich (1857) 2 C. B., N. S. 651 ; Sharp

v. Waterhouse (1857), 7 E. & B. 816.

(n) See per Lord Kenyon, C. J., Cutter v. Powell (1795), 6 T. R. 320, 324; 2 Sm. L. C. ; 3 R. R. 185 ; Cook v. Jonnings (1797), 7 T. R. 381, 384 ; 4 R. R. 468.

(0) Selway v. Fogg (1839), 5 M. & W. 83; Ferguson v. Carrington (1829), 9 B. & C. 59.

(P) Line v. Stephenson (1838), 7 Scott, 69, Ex. Ch. ; and see per Cur., Dennett v. Atherton (1872), L. R., 7 Q. B. 316, 327, Ex. Cham. ; Sanderson v. Berwick-upon- Tweed (Mayor of, &c.) (1884), 13 Q. B. D. 547, C. A.

which the implied covenant would have given him against the land- Ch. III. s. lord in case of his eviction by some person having a title paramount

Implied

Contracts. to that of the landlord (q), and even to deprive an under-tenant, evicted by reason of the mesne landlord failing to pay rent to the head landlord, from recovering damages from the mesne landlord (r). And so, although, in the absence of an express stipulation, and if there be a custom of the country to that effect, an outgoing tenant is impliedly entitled to an allowance for seed and labour, &c., in the last year of his tenancy, the benefit of which will be received by the incoming tenant; yet the custom can furnish no right by implication, where the tenant holds upon a lease or contract containing express provisions upon the subject, and which either directly contravene the custom, or show that the parties must have contemplated that it should have no application to their case (s).

SECT. 2.-Implied Contract to repay Money paid by the Plaintiff

at the request of the Defendant. The action “for money paid " is maintainable in every case in when the which the plaintiff has paid money to a third party at the request, maintainable

. express or implied, of the defendant, and with an undertaking, express or implied, on his part to repay it (t).

But to support this action it is necessary, first, that money Plaintiff must should have been paid or expended by the plaintiff. Therefore, have paid

money; where the plaintiff's goods were sold under a distress by the defendant's landlord, for rent due from the defendant, it was held that a count for money paid was not maintainable, for no money had passed from the plaintiff (u). And so, a surety for the defendant, who has merely given his bond or other undischarged security to the creditor for the original debt, cannot maintain an action for money paid (x); for giving a security is not equivalent to actual payment.

This action, however, is maintainable, although it appear that

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of Exchequer on this latter case, in
Rogers v. Maw (1846), 15 M. & W. 444,
448; in which case, that Court expressed
a very strong opinion, that if the goods
of A. be seized and sold under an execu-
tion against B., and the debt of B. be
paid with the proceeds of such sale, A.
may treat this as money paid by him to
the use of B.

(a) Maxwell v. Jameson (1818), 2 B.
& Ald. 51 ; per Parke, J., Power v.
Butcher (1829), 10 B. & C. 329, 346.

E

C.C.

CH. III. s. 2. the money paid was not wholly the money of the plaintiff. And, Implied

accordingly, where A. applied to B. and C.,—who were in partnerContracts (Money ship—for an advance; and they sent him an acceptance by B. Paid).

alone, which A. got discounted ; and, the holder thereof having sued B., the latter paid the acceptance out of the monies of B. and C.; it was held that A. was liable to him in an action for money

paid (y). to the use of Secondly, it is necessary, in order to support this action, that the defendant;

the money sought to be recovered should bave been paid to the use of the defendant. And, therefore, if A. by agreement with B., bind himself to pay, either to B. or to a third party, a sum of money which B. is primarily liable to pay; and B. is afterwards called upon to pay, and does pay such sum, his only remedy against A. is on the special agreement. For, the money so paid by B., having been paid in discharge of his own liability, was not money paid to the use of A. (z).

But still, this action may be maintained, although the defendant was not relieved from any liability by the payment made by the

plaintiff (a). and at his And it is also necessary, thirdly, that the defendant's express request.

or implied request to the plaintiff, to pay the money for his use, should be shown by the plaintiff. Accordingly, it is not sufficient merely to prove that the defendant was liable to a third

person, and that the plaintiff discharged such liability ; but it must appear that the plaintiff did so at the instance, either express or implied, of the defendant; or that the act was subsequently recognised by him (6). For it is a clearly established principle, that no contract will be effected by the mere voluntary payment of the debt of another person;

inasmuch as one man cannot be made the creditor of another without his knowledge and consent (c).

Where the plaintiff is in a condition to prove, that the money for wbich he sues in this action was paid in consequence of an actual request by the defendant, he will, of course, be entitled to recover. But where there has not been an actual request, he must show that the payment was made under circumstances from which a request would be implied; and it often becomes a matter of some nicety, to determine when such circumstances really existed. The following may be stated as the leading principles on this subject:

(y) Driver y. Burton (1852), 17 Q. B. 989.

(2) Spencer v. Parry (1835), 3 A. & E. 331 ; Lubbock v. Tribe (1838), 3 M. & W. 607.

(a) Brittain v. Lloyd (1845), 14 M. & W. 762, 763 ; Lewis v. Campbell (1849), 8 C. B. 541 ; Westrop v. Solomon (1849),

id. 345.

(6) See per Cur., Sleigh v. Sleigh (1850), 5 Exch. 514, 516.

(c) Stokes v. Lewis (1785), 1 T. R. 20; per Lord Kenyon, C. J., Child v. Morley (1800), 8 T. R. 610, 613; 1 Wms. Saund. 264, (a), n. (1).

stances from

Ch. III. s. 2.

Implied (a) Implied Authority.

Contracts

(Money If money has been paid by the plaintiff, in discharge of a

Paid"). liability which he has taken upon himself at the defendant's Circuminstance, or by his authority, the law will imply that it was paid at which the his request.

defendant's Thus where the plaintiff, who had done work for the provisional be implied.

request will committee of a projected railway company, had been induced by the Work for defendant and others, who were members of such provisional com- committee. mittee, to sue certain other members of the said committee for his bill, in order to relieve themselves of any amount which the plaintiff might thereby recover; and the plaintiff, in bringing those actions, incurred to his own attorney costs to the amount of 228l. : it was held that he might recover that sum from the defendant, as money paid " (d). So if, by the custom of trade, an agent be obliged, without any Payment by

agent for default on his part, to pay money on account of a contract into

principal. which he has entered for his principal, the law will imply a promise, on the part of the latter, to repay the same as money which has been paid to his use; and it appears that this will be the case, whether he was acquainted with the custom by which the agent was governed or not (e). And if A., in the presence of B., verbally promise C. that he, A., will pay a debt due from B. to C., if B. does not; A. will be held to have thereby acquired an authority to pay such debt on the default of B.; and if he pay it before that authority is countermanded, he will be entitled to recover the sum paid, as money paid to B.'s use (f).

But where the contract between a broker and his principal was, that the former should sell registered shares for the latter; whereas instead of doing so, he sold shares the scrip for which was, at the time of the contract, in the office of the company for registration, 80 that the broker could not deliver them; and in consequence thereof he had other shares bought in against him, and was obliged to pay the difference; it was held that he could not charge his principal with the difference so paid, as money paid to his use (g).

(b) Compulsory Payments.

Where the plaintiff is compelled to pay the defendant's debt, in Compulsory consequence of his neglect or omission so to do, the law infers that payments

Bailey v. Haines (1849), 13 Q. B. 213. 823.

Westrop v. Solomon (1849), 8 C. B 345; and see Duncan v. Hill (1873), L , & Ex. 242, Ex. Cham. ; Hartas v,

Ribbons (1889), 22 Q. B. D. 254, C. A.

(f) Alexander v. Vane (1836), 1 M. & W. 511.

(9) Bowlby v. Bell (1846), 3 C. B. 284, 294.

Contracts

CH. III. s. 2. the defendant requested the plaintiff to make the payment for Implied

him, and gives him the action for money paid. (Money Speaking generally, and excluding exceptional cases,” it is Paid).

observed in the judgment of the Court of Appeal in Edmunds v. General rule. Wallingford (h), “where a person's goods are lawfully seized for Edmunds v. Wallingford.

another's debt, the owner of the goods is entitled to redeem them, and to be reimbursed by the debtor against the money paid to redeem them, and in the event of the goods being sold to satisfy the debt, the owner is entitled to recover them from the debtor. The right to indemnity in these cases exists, although there may be no agreement to indemnify, and although there may be in that sense

no privity between the plaintiff and the defendant." Recovery of Thus, if a tenant pay ground-rent due from his landlord, in order money paid to avoid

to prevent his, the tenant's, goods from being distrained for such distress for

rent, he

may

recover it as money paid to the landlord's use (i). So rent.

where the plaintiff, at the request of the defendant, left a carriage on the premises of the defendant, and the carriage was there seized under a distress for rent due from the defendant; it was held that the plaintiff, having paid the rent, might recover the amount from the defendant as money paid to his use (k). And it is unnecessary for the plaintiff, in order to entitle him to reimbursement in such a case, to resist the distress, if valid, by replevying or bringing an action. For where a party is in a situation, where he may be compelled by law to pay a sum of money, although he be not actually compelled to do so, and he pays it accordingly, the action will lie (1). Nor will the payment by an under-tenant to the ground landlord, of rent due to him, be considered voluntary, merely on account of the ground landlord having given time to the under-tenant for the pay

ment of such rent (m). Costs of So, where it appeared that the custom was that, on the granting of lease.

a lease, the lessor's solicitor should prepare the lease, but that the lessee should the expenses thereof: it was held that the lessor might recover from the lessee, as money paid to his use, the amount

of costs paid by him, the lessor, to his solicitor for preparing the Repair of

lease granted to the lessee (n). And where lands, charged with the bridge. repair of a bridge, are occupied by a person not the owner, such

pay

(h) Edmunds v. Wallingford (1885), 14 Q. B. D. 811, C. A., a single, considered, and written judgment, disapproving, but distinguishing, England v. Marsden (1866), L. R., 1 C. P. 529.

(2) See Sapsford v. Fletcher (1792), 4 T. R. 511. Mortgagee of a term is liable to the lessee, for ground rent paid by him, although such mortgagee has not taken possession ; Stone v. Evans (1797), Peake, Add. Ca. 94.

(K) Exall v. Partridge (1799), 8 T. R. 308 ; 4 R. R. 656.

(1) See Sleigh v. Sleigh (1850), 5 Exch. 514, 517 ; per Burrough, J., Hales v. Freeman (1819), 1 B. & B. 391, 399.

(in) Carter v. Carter (1829), 5 Bing. 406.

(n) Grissell v. Robinson (1836), 3 Scott, 329. A similar rule applies in the case of a marriage settlement: Helps v. Clayton (1864), 17 C. B., N. S. 553.

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