CH. III. s. 1. Reimburse ment of expenses. Part performance on of tract void for want of writing. possession (c). So if, in the absence of a husband, I incur expense in burying his wife in a manner suitable to the husband's condition, though without his knowledge, the law will imply a promise by him to reimburse me (d). So an executor, who has assets sufficient for that purpose, impliedly promises to pay for a funeral funeral suitable to the degree of the testator, furnished by the directions of a third person during the absence of the executor, and of which he had, at the time, no knowledge (e). So, if there be a contract void for want of writing under the Statute of Frauds, from the part performance of which by the plaintiff the defendant derives a benefit, he is often liable, not upon the agreement, but upon a quantum meruit, to the extent of the benefit received (ƒ). He who provides the public for payment with accommodation for Contract for viewing a show impliedly contracts with any person availing himself of that accommodation that it may be safely used, as was held show. in Francis v. Cockrell (g). There the defendant, as member of a committee, had employed a competent contractor to erect a grand stand from which to view a steeplechase at Cheltenham, and the plaintiff, who had paid 5s. for admittance, was injured by the stand having been improperly constructed without the knowledge of the defendant. The Court, proceeding on the analogy of the implied contract of carriers with passengers (h) to carry carefully, held the defendant liable, although he received the admittance money merely as one of a race committee. fitness of stand to see Francis v. There is also an implication of law, that where premises are Notice to quit. taken under a yearly tenancy, either landlord or tenant may determine the tenancy by half a year's (i) notice to quit, expiring at the end of any current year of the tenancy. from the usage of trade. So, if there be an invariable, certain, and general usage or When implied custom of any particular trade or place, the law will imply on the part of one who contracts, or employs another to contract for him upon a matter to which such usage or custom has reference, a promise for the benefit of the other party, in conformity with such usage or custom; provided, that is, there be no express (c) Handford v. Palmer (1820), 2 B. & B. 359. (d) Jenkins v. Tucker (1788), 1 H. Bl. 90. (e) Rogers v. Price (1829), 3 Y. & J. 28. (f) Mavor v. Pine (1825), 3 Bing. 285. (g) Francis v. Cockrell (1870), L. R., 5 Q. B. 501, Ex. Ch., affirming decision of Queen's Bench, ib. 184. For statutory liability under the adop tive Public Health Acts Amendment Act, 1890, 53 & 54 Vict. c. 59, see sect. 37 of that Act, Chit. Stat. tit. " Public Health;" and see as to sale of goods, sect. 14 of the Sale of Goods Act, 1893, Ch. XIII., sect. 2, post. It is conceived that the (h) See Redhead v. Midland R. Co. (i) This half-year's notice is, in the case of a farm, altered by the Agricultural Holdings Act, 1883, 46 & 47 Vict. c. 61, s. 33, to one year's notice. CH. III. s. 1. From usage Stock Exchange rules. When not stipulation between them which is inconsistent with such usage. To be binding, however, such usage must be uniform and universal; but when such invariable usage is proved, it is to be considered as the basis of the contract between the parties; and their respective rights and liabilities are held to be precisely the same as if, without any usage, they had entered into a special agreement to the like effect (k). Where, therefore, it was proved that, by the usage of trade in the river Thames, credit is given by a shipwright for repairs of a ship, if there be no agreement as to the time of payment; it was held by Lord Ellenborough, that the parties must be supposed to have dealt on the terms of credit; and, therefore, that the defendant, a shipwright, who had repaired the plaintiff's vessel, had no lien on it for the amount (1). And even in cases where the party attempted to be charged upon an implied promise, arising solely from the usage of a particular trade, was not shown to have been cognizant of the usage, he has still been held to be liable by virtue of it. For example, where, by the usage of the Stock Exchange, a broker is obliged, without any default on his own part, to pay differences on a contract into which he has entered for his principal, there is an implied promise on the part of the latter to repay the same to him; and that, whether he was acquainted with the usage by which the broker was governed or not (m). But, where the usage is one which merely applies to the mode of dealing of a particular house, a party cannot be bound thereby, unless he be shown to have had notice of it. And therefore, although interest, or in some cases, even compound interest, may be recovered, where there has been a course of dealing between the parties, or usage to that effect; yet it has been held, that a debtor is not bound or affected by the custom of his bankers, to charge interest upon interest by making rests in their accounts, unless it can be proved that he was aware of such practice (n). It is also clear that a promise to a particular effect may be from previous implied in any given case, from the circumstance of the parties having invariably, on former and similar occasions, adopted any particular terms or course of dealing. Thus, a contract to pay interest, or to allow interest to be added to principal at stated periods, and to pay interest on the whole, may be implied from the fact that, on former occasions, the accounts between the parties have been stated and settled on that footing (0). When implied course of dealing. (4) Per Lord Ellenborough, C.J., Raitt v. Mitchell (1815), 4 Camp. 146, 149; 16 R. R. 755. (1) Raitt v. Mitchell (1815), 4 Camp. 146; 16 R. R. 755. (m) Sutton v. Tatham (1839), 10 A. & E. 27; and see post, Ch. XX., sect. 6. (n) Moore v. Voughton (1816), 1 Stark. 487. (0) See Bruce v. Hunter (1813), 3 There are likewise cases in which the law raises a promise even from the wrongful acts of a party, and in which the Courts will not admit evidence of his intention to commit a tort, in order to negative such implied promise; for no man can set up or take advantage of his own wrong. Thus, where the plaintiff took an excursion ticket for a journey by railway, knowing that the company did not carry luggage for passengers travelling by excursion trains; and he nevertheless took a portmanteau with him without having it booked and paid for it was held that this raised an implied contract to pay for the carriage of the portmanteau; and that the company had a right to detain it until the carriage was paid (p). So, if a party seduce away and harbour an apprentice, the master may sue such party for the work and labour of the apprentice (q), and an action lies to recover the value of goods, as sold to the defendant, if he by fraud induce the plaintiff to sell them to an insolvent person, and afterwards get them into his own possession (r). CH. III. s. 1. From tortious sumed assent. A promise will sometimes be implied from the silence or pre- From presumed assent of the party, as if a landlord give his tenant notice to quit or pay an advanced rent, and the tenant holds over, he is taken to have acquiesced in the new proposal, and to be liable for the advanced rent (s). tive notice. So a purchaser, mortgagee, or tenant, whether for a term of From actual years, or from year to year, is, in equity, bound to inquire into or constructhe title of his vendor, mortgagor, or lessor; and a Court of Equity will hold him to be affected with notice of, and to be bound by covenants appearing upon such title (t). In some cases the law will imply a contract to pay money, from the fact of there being already a legal obligation to pay it, although the transaction was in its origin totally unconnected with contract, and there has been no promise in fact (u). Upon this principle, an action in form ex contractu will lie for money due upon a judgment obtained in a foreign Court (x); or upon an Camp. 467; Eaton v. Bell (1821), 5 B. & Ald. 34; Gwyn v. Godby (1812), 4 Taunt. 346; Newal v. Jones (1830), Moo. & M. 449; Calton v. Bragg (1812), 15 East, 223. (p) Rumsey v. North-Eastern Railway Company (1863), 14 C. B., N. S. 641. (q) Lightly v. Clouston (1808), 1 Taunt. 112; Foster v. Stewart (1814), 3 M. & S. 191. (r) Hill v. Perrott (1810), 3 Taunt. 274. (s) Roberts v. Hayward (1828), 3 C. & P. 432. (1) Tulk v. Moxhay (1848), 2 Ph. 774, App.; Wilson v. Hart (1866), L. R., 1 Ch. Ap. 463; Haywood v. Brunswick (u) See per Parke, B., Williams v. (a) Walker v. Witter (1778), Dougl. 1, 4; Schibsby v. Westenholz (1870), L. R., 6 Q. B. 155; Meyer v. Ralli (1876), 1 C. P. D. 358; Copin v. Adamson (1875), L. R., 1 Ex. D. 17, C. A. It is no bar to an action on the judg ment of a foreign Court, in personam, that it appears on the face thereof, that the foreign tribunal has put a construction on an English contract, which was From the existence of legal obligation under the judgment of a Court. Implied Contracts. Foreign judgment. CH. III. s. 1. Irish judgment (y); or a Scots decreet (z). So an action is maintainable, at law, on a decree of a colonial Court of Equity, which simply ascertains a balance to be due from the defendant, and orders payment thereof by him to the plaintiff (a); or to recover money due on the decree of a colonial Court, for payment of a balance due on a partnership account (b). But an action is not maintainable on the mere interlocutory order of a Court of law (c); although it may be maintained on a final order, made in a collateral or interlocutory proceeding, the original suit being still undetermined (d). From words of recital, &c. From circum. stances connected with Where words of recital or reference manifest a clear intention that the parties should do certain acts, the Courts will, from these, infer an agreement by them to do such acts (e). Therefore, where, by charter-party, it was agreed that the ship C., "expected to be at A. about the 15th December," should with all convenient speed sail and proceed to that port, and then receive a cargo from the charterers: it was held that the words "expected, &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 (ƒ). And where a party enters into an agreement, which can only take effect by the continuance of a certain existing state of the contract. circumstances, 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 (g).' Security of Francis v. The security of a platform for view is impliedly guaranteed, to the extent that a man who causes a building to be erected for viewing a public exhibition and admits persons on payment, impliedly undertakes that due care has been exercised in the erroneous according to English law: 310. (y) Harris v. Saunders (1825), 4 B. & C. 411. (z) Russell v. Smyth (1842), 9 M. & W. 810; Douglas v. Forrest (1828), 4 Bing. 686. (a) Henderson v. Henderson (1844), 6 Q. B. 288; Sadler v. Robins (1808), 1 Camp. 253. (b) Henley v. Soper (1828), 8 B. & C. 16. (c) Patrick v. Shedden (1853), 2 E. & B. 14; 22 L. J., Q. B. 283; Emerson v. Lashley (1793), 2 H. Bl. 248; Fry v. Malcolm (1812), 4 Taunt. 705. (d) Hutchinson v. Gillespie (1856), 11 Exch. 798. (e) See Knight v. Gravesend, &c., Waterworks Company (1857), 2 H. & N. 6; Lay v. Mottram (1865), 19 C. B., N. S. 479; Easterby v. Sampson (1830), 6 Bing. 644. (f) Corkling v. Massey (1873), L. R., 8 C. P. 395. (g) Per Cockburn, L. C.J., Stirling v. Maitland, 5 B. & S. 840, 852; and see Rhodes v. Forwood (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. erection, and that the building is reasonably fit for the purpose; and it is immaterial whether the money is to be appropriated to his own use or not (h). CH. III. s. 1. Implied cononly in the absence of tracts. tracts exist express con The express "qualified' covenant for quiet enjoy With regard to all the above cases, however, this principle must be kept in view, namely, that promises in law exist only where there is no express promise between the parties: expressum facit cessare tacitum (i). 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 express contract (k). Thus, although the word "demise" implies a covenant for quiet enjoyment, yet it is qualified and restrained by an express covenant for quiet enjoyment (1), the effect of which express covenant, as usually framed, is to deprive a tenant taking Line v. a lease from a landlord having no title of the right to sue for Stephenson. damages which the implied covenant would have given him against the landlord in case of his eviction by some person having a title paramount to that of the landlord (m), 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 (n). Similarly an express stipulation in a farming agreement excludes a custom of the country in relation to the same matter. ment. SECT. 2.-Implied Contract to repay Money paid by the Plaintiff at the request of the Defendant. It was laid down in Brittain v. Lloyd that the action "for money paid" is maintainable in every case in which there has been a payment of money by the plaintiff to a third party at the request, express or implied, of the defendant, and with an undertaking, express or implied, on his part to repay it; and that it is immaterial whether the defendant is relieved from a liability by (h) Francis v. Cockrell (1870), L. R., 5 Q. B. 501, Ex. Ch. The defendant in this case was member of an unpaid committee informally appointed for the management of steeplechases at Cheltenham. He was personally free from all negligence, and had employed a competent contractor. (i) See per Lord Kenyon, C.J., Cutter v. Powell (1795), 6 T. R. 320, 324; 2 S. L. C.; Cook v. Jennings (1797), 7 T. R. 381, 384. (k) Selway v. Fogg (1839), 5 M. & W. 83; Ferguson v. Carrington (1829), 9 B. & C. 59. (1) 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. Berwickupon-Tweed (Mayor of, &c.) (1884), 13 Q. B. D. 547, C. A. (m) See Woodfall, L. T., Chap. xvii., s. 7 (b), citing Merrill v. Frame (1812), 4 Taunt. 429; 13 R. R. 622. (n) Kelly v. Rogers, [1892] 1 Q. B. 910; Roberts v. Barker (1838), 1 C. & M. 808. When the action for, is |