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CHAPTER.9
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Common Counts
COMMON COUNTS - Certain general counts, not founded on any
special contract, which are introduced in a declaration, for the
purpose of preventing a defeat of a just right by an accidental
variance in evidence.
"These are, in an action of assumpsit, counts founded on
implied promises to pay money in consideration of a precedent debt,
and have been variously classified. Those usually comprehended
under the term are:--
"1. Indebitatus assumpsit, which alleges a debt founded
upon one of the several causes of action from which the
law implies a promise to pay, and this is made the
consideration for the promise to pay a sum of money
equivalent to such indebtedness. This covers two
distinct classes:--
a. Those termed money counts, because they related
exclusively to money transactions as the basis of the
debt alleged:
(1) Money paid for defendant's use.
(2) Money had and received by defendant for the
plaintiff's use.
(3) Money lent and advanced to defendant.
(4) Interest.
(5) Account stated.
b. Any of the usual states of fact upon the debt may be
founded, the most common being:
(1) Use and occupation.
(2) Board and lodging.
(3) Goods sold and delivered.
(4) Goods bargained and sold.
(5) Work, labor, and services.
(6) Work, labor, and materials.
2. Quantum Meruit.
3. Quantum Valebant."
Bouvier's Law Dictionary (1914), p. 564.
DISPARAGEMENT - (In Old English Law): An injury by union or
comparison with some person or thing of inferior rank or
excellence.
Bouvier's Law Dictionary (1914), p. 887.
"Common counts, though mainly conclusions of law, are not subject
to either general or special demurrer." Smith v. Bentson (1932),
127 C.A.Supp. 789, 15 P.2d 910.