
    *Hoppess v. Straw.
    July, 1839,
    Lewisburg.
    (Absent Bkooke, J.l
    Assumpsit-Count in Tort — Demurrer—Case at Bar.— A declaration, baving two counts which are clearly in assumpsit, has a third to the following effect: that the defendant employed the plaintiff as his agent to receive from D. G. 901 pounds of bar iron at 4 cents per pound, and the plaintiff accordingly received from D. G. for the defendant, the ■ said quantity of bar iron, and delivered the same to the defendant, but the defendant afterwards denied that he had authorized the plaintiff to receive the same, and also denied that the plaintiff had delivered to him the said bar iron, and altogether refused to pay the said D. G. for the same; whereupon D. G. brought suit against the plaintiff, and recovered against him $36. 04 cents damages, the price of the bar iron, with interest from the 9th of March 1830, and $56. 36 cents costs, which damages, interest and costs the plaintiff paid ; by reason whereof the defendant became liable to pay the plaintiff the same, and in consideration thereof undertook and promised to pay the said plaintiff the same, but has failed so to do. Upon a demurrer to this court, Held, it is in as-sumpsit, as well as the others, and sufficient matter is contained in it to maintain the action.
    Assumpsit in the county court of Wythe, by David Straw against Henry Hoppess. The declaration contained three counts. The first count was as follows: “that on the — ■—day of — -1830, at the county aforesaid, the defendant employed the said plaintiff as his agent to receive from a certain David Graham 901 pounds of bar iron at the price of 4 cents per pound, and after-wards, to wit, on the — •—day of — —■—in the year 1830, at the county aforesaid, the said plaintiff, in pursuance of the said authority, and at the special instance and request of the said defendant, did receive from the said David Graham, for the said defendant, the said quantity of 901 pounds of iron, which said quantity of bar iron of 901 pounds the said plaintiff did, on the *-day of-1830, at the county aforesaid, deliver to the said defendant. The plaintiff avers that the said defendant,-intending to defraud and deceive him the plaintiff, altogether denied that he had authorized the said plaintiff to receive the said iron from the said David Graham, and also denied that the plaintiff delivered to him the said bar iron, and altogether refused to pay the said David Graham for the said bar iron. Afterwards, to wit, on the •-day of — ■——, the said David Graham commenced his suit against the plaintiff in the county court of Wythe for the value of the said quantity of bar iron, and after-wards, to wit, on the 12th day of March 1834, in the county aforesaid, at a court continued and held for the county of Wythe aforesaid, the said David Graham recovered against the plaintiff 36 dollars and 4 cents damages, the price of the bar iron aforesaid, with interest on the said damages from the ninth day of March 1830 until paid, and 56 dollars 36 cents the costs of the said suit, which damages, interest and costs the plaintiff avers he has paid. By reason of the premises, the plaintiff avers that the defendant became justly indebted, liable and bound to pay him the aforesaid damages, interest and costs, and being so indebted, in consideration thereof, after-wards, to wit, on the-day of — ——1S34, at the county aforesaid, the said defendant undertook and faithfully promised to pay the said plaintiff the amount of the aforesaid damages, interest and costs, when he should thereunto be requested. Nevertheless the plaintiff in fact says that the said defendant, although often requested so to do, the said amount of damages, interest and costs, or any part thereof, hath not yet paid to the said plaintiff, but the same to pay hath hitherto refused and still doth refuse.”
    The second count was for bar iron sold and delivered; and the third, for money had and received.
    *To the first count the defendant filed a demurrer, wherein the following causes of demurrer were assigned: 1st. That the count is in case for consequential damages, and not upon a direct undertaking. 2dly. That the count is double, having an averment that the injury resulted from a fraudulent and false refusal to acknowledge an agency, and also an averment that a recovery was had against the plaintiff not as agent, but as purchaser from Graham.
    The demurrer being argued and overruled, the defendant pleaded non assumpsit. The jury who tried the issue found a verdict for the plaintiff, and assessed his damages to 161 dollars 32 cents, for which judgment was rendered.
    Upon a supersedeas from the circuit court, that court affirmed the judgment.
    Whereupon a judge of this court awarded a supersedeas to the judgment of the circuit court.
    The attorney general and Preston for plaintiff in error.
    M’Comas for defendant in error.
    
      
      See monographic note on “ Assumpsit ” appended to Kennaird v. Jones, 9 Gratt. 183.
      
    
   STANARD, J.

The objection urged to the first count is, that the matter set forth in it as the source of the indebtedness therein alleged of the defendant to the plaintiff, is a tort, for which the action of assumpsit is not the proper remedy. This objection is, I think, not well founded. That count substantially states a contract between the plaintiff and defendant, that the plaintiff should receive for and deliver to the defendant a quantity of iron of given value; the performance of the contract by the plaintiff; the resulting duty of the defendant to account and pay for it to the party from whom the plaintiff had received it, so as to protect the plaintiff from responsibility to that party; the failure of the defendant to perform that duty, and the consequent claim on, and suit and judgment against the ^plaintiff, and the payment of the amount thereof. For whatever the plaintiff was entitled to recover in such a case, the action of as-sumpsit was a proper remedy. The doubts I have had respecting the sufficiency of the count are, 1st. Whether indebitatus assump-sit would lie in such a case; 2d. Whether, though, in respect to the amount that the plaintiff had been compelled to pay for the iron, it be the proper remedy, it be so for the costs that were recovered of the plaintiff in the suit against him for the iron; and 3d. If not the proper remedy for the costs, whether the union of the claim for the costs with that for the amount recovered and paid as the value of the iron, in the same count, was not a fatal defect of that count.

That the plaintiff might, in respect to the amount recovered of and paid by him as the value of the iron, support the action of as-sumpsit, and declare on an indebitatus assumpsit, and even use the general count for money paid to the use of the defendant, is a proposition free from- any reasonable doubt. Where one man has paid, under legal compulsion, money which ought to have been paid by another, or where, under such compulsion, the property of one has been taken to discharge the debt of another, a remedy is afforded bjr this action in its most general form. Exall v. Partridge, 8 T. R. 308. This being so, it is not necessary to the decision of the question before the court on the demurrer to the first count, that the other doubts I have indicated should be minutely investigated and solved. After much reflection, and against my first impressions, I am satisfied that if the defendant be responsible to the plaintiff for the costs, or rather, that to the extent that the defendant is responsible for the costs, the plaintiff may recover them in the like action wherein he can recover the amount for which he has been made chargeable for the value of the iron, by the suit in which those costs were recovered of him. His action, resulting from that suit '"'and judgment, mu t be integral; at least he cannot be compelled to take several remedies, to recover separate portions of the entire redress to which he is entitled. It has already been shewn that indebitatus assumpsit lies for a part of the recovery against him; and if not for the residue, it is because he is not entitled to charge the defendant with that residue, and no action lies for it. If it was not recoverable in any action, (and on this I give no opinion,) the question resulting on the demurrer, which pro hac vice must be taken as a general one, is whether, when the plaintiff claims by his count several sums as constituting the indebtedness of the defendant, some valid and some not so, the count is bad on general demurrer? I think not. A general demurrer to a declaration containing one good and one bad count, would not be sustained.

The modern form of declaring in general indebitatus assumpsit, is to state in the same count several sources of indebtedness for several sums, and charge one assumpsit for the whole. Thus, one and the same count states that the defendant was indebted to the plaintiff in one sum for money had and received, in another sum for goods sold, in another sum for money paid &c. and being so indebted, in consideration thereof undertook and promised to pay the several sums before stated. Suppose such a count had stated that the defendant was indebted, in one of the sums, for so much money that he had promised to give the plaintiff: I cannot doubt that a general demurrer to the count would be overruled. The law distributes the as-sumpsit to so much of the cause or causes stated in the count as can sustain it, and measures its obligation by the dimensions of those causes; and if one cause be stated not sufficient to sustain the assumpsit in respect to it, the defendant is to seek protection from that invalid claim, not by a general demurrer to the whole count, but by special demurrer, or by objection urged on the trial. This being *so, it is unnecessary to the decision upon the demurrer, that the question as to the defendant’s liability for the costs claimed by the plaintiff should be considered. And as it does not appear to the court from the record, that the costs were allowed, and included in the verdict of the jury, this court, though it were clearly of opinion that the costs were not recoverable, could not, on that opinion merely, found a judgment that the verdict was wrong, and the judgment of the court below upon it erroneous. My opinion therefore is that the judgment must be affirmed.

PARKER and CABELE, J., concurred.

TUCKER, P. I defer to the opinion of my brethren in this case, though I am compelled to acknowledge that I cannot even now divest myself of very strong doubts of the validity of the first count in the declaration.

Judgment affirmed.  