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Hemingway v. Skinner Engineering Co.

DECEMBER 12, 1969.

JOSEPH M. HEMINGWAY, D/B/A HEMINGWAY ENGINEERING, PLAINTIFF-APPELLEE,

v.

SKINNER ENGINEERING COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of DuPage County, Eighteenth Judicial Circuit; the Hon. GORDON MOFFETT, Judge, presiding. Judgment affirmed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

The plaintiff, Joseph M. Hemingway, d/b/a Hemingway Engineering, a distributor of smokestacks and smoke abaters, brought this suit against the defendant, Skinner Engineering Company, a corporation, to recover the sum of $7,811 for services and materials furnished to the defendant on two individual job sites. The complaint alleged:

"1. That on or about August 13, 1965 the plaintiff was engaged in the business of building material and related products.

"2. That on or about the before-mentioned date and on days both prior and subsequent thereto, the plaintiff at the instance and request of the defendant furnished services and material to said defendant.

"3. That the reasonable value of the unpaid services and material is $7,811.00 which the defendant agreed to pay.

"4. That the same is wholly unpaid although payment has been duly demanded.

"WHEREFORE, plaintiff demands judgment against the defendant in the amount of $7,811.00 plus costs of suit."

Before the trial, the defendant demanded and the plaintiff furnished a bill of particulars. The defendant filed an answer wherein it denied all of the allegations of the complaint, except paragraph 1 thereof. The case was tried before the court without a jury and judgment was entered for the plaintiff in the sum of $7,371. The defendant appealed.

On appeal, the defendant contends that the plaintiff did not prove the reasonable value of the unpaid services and materials; that the plaintiff's complaint was predicated on a quantum meruit theory; and that the judgment must be reversed in that the plaintiff cannot allege a cause of action under the quantum meruit theory — that the defendant promised to pay the plaintiff the reasonable value of the services and materials furnished —, and recover on proof which supports only the indebitatus assumpsit theory — that the defendant owed a debt to the plaintiff which the defendant promised to pay.

The plaintiff contends that his pleadings were predicated upon, and his proof sustained, the indebitatus assumpsit theory; and that the trial court's findings should not be disturbed unless clearly against the preponderance of the evidence.

[1-3] The origin and development of the action of assumpsit is involved and interesting, but need not be restated in this opinion. At common law there were two forms of the action of assumpsit — special and general. Generally speaking, special assumpsit was a proper remedy where there was an express contract, while general assumpsit would lie under certain circumstances where there was an express contract and where a contract was implied. Such circumstance existed where a contract has been fully performed and nothing remained but to pay the money. The various forms of general assumpsit, known as the common counts, were: indebitatus assumpsit; the quantum counts (quantum meruit and quantum valebant); the money counts (money had and received, money lent and money paid); and the count upon an account stated. See: Banik v. Bishop-Stoddard Cafeteria Co., 288 Ill. App. 174, 178-183, 5 N.E.2d 868 (1937); 1 Am Jur2d (Actions), pp 551-557.

Under the common law of this State, indebitatus assumpsit was one of the common counts used to recover a debt for labor, material or other personal services furnished by the plaintiff where there was a subsequent promise to pay and the remuneration was to be in money. Foster v. McKeown, 192 Ill. 339, 344, 345, 61 N.E. 514 (1901); Banik v. Bishop-Stoddard Cafeteria Co., supra, 179. However, the use of the common counts in pleadings is now specifically prohibited by section 33(1) of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 33(1)). Also see: Joint Committee Comments, SHA, c 110, § 33, pp 374-375.

It is obvious that the use of the common-count allegations violate the spirit and letter of the requirement of section 33(1) of the Act, that all "pleadings shall contain a plain and concise statement of the pleader's cause of action, . . . ." (Ill Rev Stats 1967, c 110, par 33(1).) The common counts do little more than give notice of the general nature of the plaintiff's claim, and they fail to inform the defendant of the real issues to be tried. While the elements of a cause of action may be contained therein, the legal ...


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