
    Ralph Huntington versus The American Bank
    Paying money into court upon a quantum meruit count, is an admission of the contract as alleged.
    Where by the vote of the directors of a bank, the plaintiff was appointed special director, to receive such compensation as “ should in the opinion of the board be reasonable and fair,” and he declared for a reasonable compensation in a quantum meruit count, and the defendants paid into court the amount voted by the directors to be a (< reasonable compensation,” it was held that by paying the money into court, the defendants waived this limitation of the contract.
    Assumpsit. The plaintiff declared for the sum of 1500 dollars, first, in indebitatus assumpsit on an account annexed to the writ, for his services as special director of the bank ; secondly, that the defendants, in consideration that the plaintiff, at their special request, had performed certain services ip and about their banking affairs and concerns, promised to paj him on demand so much money as he reasonably deserved to have, &c. The defendants pleaded a tender of 300 dollars and paid that sum into court ; which was taken out by the plaintiff; and as to the residue, they pleaded that they never promised ; upon which issue was joined.
    At the trial, before Wilde J., the records of the following votes were produced, viz, “ At a meeting of the directors of the American hank, December 4th, 1824, it was voted, that it is expedient that some one of the directors of said bank should be designated to act as a special director, till the further order of this board, whose duty it shall be to attend constantly at said bank, during bank hours, and aid the director of the week in the discharge of the duties of his office.” Voted, “ That the director thus specially designated, shall rece ve from time to time, as a compensation for his services, such sum or sums as shall be, in the opinion of this board, considered a reasonable and fair compensation.” Voted, “ That Ralph Huntington, one of the directors of said bank, be designated a special director of said bank, for the purposes aforesaid, and upon the terms aforesaid.”
    
      March 19th
    
    The plaintiff then offered evidence to prove the amount of his services as such special director, and that he deserved to have therefor a greater sum than 300 dollars. Whereupon the counsel for the defendants produced the record of the following vote of the directors ; viz. “ At a meeting, Sept. 20th, LS25, voted, that the compensation to be given to Mr. Huntington, for his services, during the time he acted as special director of this bank, be three hundred dollars.” And the defendants’ counsel contended, that the plaintiff was bound by his contract with the bank to accept that sum as a full compensation for his services ; and objected to the admission of testimony to prove the amount and value of his services. The objection was overruled, the question being reserved for the whole Court, and the testimony was admitted.
    The jury found a verdict for the plaintiff’for the sum of 100 dollars, after allowing for the sum paid into court.
    The question principally argued was, whether the defendants, by paying the money into court generally, without designating the count on which it was paid in, and by pleading generally to the rest of the declaration, that they had never promised, had waived the limitation of the plaintiff’s compensation to “ such sum or sums as should be, in the opinion of the directors, considered reasonable and fair.”
    S. D. Ward, for the defendants,
    contended that to the first count they could not safely have pleaded any other plea than that of a tender. If the general issue had been pleaded, the plaintiff would have been entitled to recover 300 dollars on the first count. The contract proved by the defendants had been performed and that sum had become due upon it before the commencement of the action ; and it is a well settled principle, that, where a special contract has been performed, and the remuneration was to be in money, the common indebitatus count is sufficient. 1 Chit. PI. 339. The plaintiff, having claimed 1500 dollars, would have been entitled to recover the less sum of 300, upon the defendants’ own showing. The first count, then, and the contract proved, are not inconsistent. A tender to this count, therefore, is not an admission of a different contract from the one proved.
    The second count is to be considered, in regard to this action, as substantially the same as the first; being to recover a compensation that might as well have been recovered under the first, and amounting to the same tiling in its legal effect. 2 Chit. Pi. 6, note (t). If this position is correct, then if the tender would have been good to the first count, and would not have admitted a contract different from the one proved, it is good to the second count; and the objection that the contract set forth in the second count, and the one proved, are different, falls to the ground.
    But the defendants contend that the quantum meruit or second count, does not set forth a different contract from the one proved. The contract proved is only a limitation of the one set forth ; that is, if we consider the second count as meaning precisely what it says, and not as a mere general common count, adopted for convenience, and stating one thing when it admits of a different thing being proved. This count states that the defendants promised such a compensation as the plaintiff reasonably deserved to have, and the contract proved was, that he was to have such a compensation as the directors should think reasonable. He was to have a reasonable com pensation in both cases, but, in the latter, it was to be limited to such sum as the directors should think fit. In an action against a carrier for not carrying goods safely, the defendant paid 5 Z. into court, and it was contended that he thereby admitted the contract declared upon. But the court permitted him to give in evidence a general printed notice, that he would not be answerable for any amount over that sum, unless the goods were entered and docketed in a particular manner. Though he admitted that he was bound to carry the goods .safely, yet he was allowed to show, that by an agreement, (for it amounted to that,) he was not to pay more than the sum tendered, unless .a certain condition was performed. So in the present case, it was competent to the defendants to show that the amount of what was a reasonable compensation, depended on a condition or a contingency. See Peake’s Ev. 203, 204, and cases there cited.
    A tender and payment of money into court, are an admission of a special contract only, and the principle does not apply to the common counts. This is shown by all the authorities which were cited for the plaintiff; which are cases of special contracts ; and no instance can be found in which the principle has been decided to apply to the common counts. 1 Dunlap’s Pract. 423. One reason for this distinction is, that, in a special declaration, the facts must be proved as stated, and a tender and paying money into court may be an admission of the facts so stated. But, in the common counts, the facts need not be proved as stated ; they are in many respects legal fictions. Under an indebitatus assumpsit, a quantum meruit or quantum valebat may be proved ; and a quantum valebat, under a quantum meruit. 5 Dane’s Abr. 503, 504. Under the count for money had and received, a note of hand may be given in evidence ; or any thing showing that “ ex (equo et bona,” the defendant is indebted to the plaintiff; and so of the other money counts. If a tender is made under a count for money had and received, would it be an admission of the note or other written contract offered to support this count ? Would not the plaintiff be obliged to make out his whole case, as if no money had been tendered, except as to the sum tendered ? Both parties know that the common counts are in some degree fictitious, and not a true statement of the plaintiff’s case ; and the court will view the intention and understanding of the parties. J\fuller y. Hartshorne, 3 Bos. & Pul. 556. How can it be said that the defendant has admitted on the record a statement that is known to be a mere fiction of law ? It must have been from considering these counts as fictitious, that Lord Holt was led to make the remark, that £< he was a bold man who first ventured upon these common counts.” It is apparent to the court, that the plaintiff has not stated his facts in his declaration, as he intends and expects to prove them. It would seem strange that the defendants should be held to have admitted facts that were never intended or expected to be proved ; and which the plaintiff was not bound to prove, to make out his case. In a special count, it would be otherwise ; as on a bill of exchange, it may be said a tender admits the execution of the bill, for the defendant knows this last must be proved before the plaintiff can recover.
    This distinction, in respect to special and general counts, is fully supported in 5 Dane’s Abr. 512 ; and a case is mentioned in the same volume, p. 505, 506, where there were general .and special counts, and money paid in was applied by agreement of the parties to all the counts, and the plaintiff contended that the defendant had thereby admitted the special contract; but the court said “ the defendant could not have intended to admit what would defeat his defence.”
    The authority already referred to (5 Dane’s Abr. 503, 504,) shows that indebitatus and quantum meruit counts are substantially the same, for the author, after saying money cannot be paid into court where the damages are uncertain, adds, £< so it was once held as to quantum meruit, but of late, money, in quantum meruit, has been allowed to be brought into court, and generally when indebitatus assumpsit is the proper action, far the damages are certain.” By this authority the two counts are considered to be substantially the same. But if the quantum meruit is considered to mean what its- terms literally import, viz. a promise to pay what the plaintiff “ reasonably ought to have,” the damages would most assuredly be uncertain, and the tender, in this action, to the quantum meruit, would be a bad plea ; and the plaintiff having taken issue ins;ead of demurring, the court would not, under these circum stances, draw the same legal inference from a bad plea, that they would from one that was good.
    
      Fletcher, for the plaintiff.
    The second count alleges, that in consideration that the plaintiff, at the special request of the defendants, had performed certain services for them in and bout their banking business, they promised to pay him there for so much as he reasonably deserved to have, and then alleges that he reasonably deserved to have 1500 dollars. This is technically and specifically a special count, and sets out a special contract.’ This is the old form, as used before the introduction of general counts ; and it was the change from this very form that Lord Holt pronounced to be the work of a bold man. The only difference between the ancient special mode of declaring and the late more general form, is, that, in the former, the manner and nature of the work and labor were set forth in the declaration, as in this second count; and the latter does not state these particulars.
    By bringing money into court the defendants admit the entire contract, as stated in the second count; they necessarily admit also, that there is due to the plaintiff as much as that contract entitles him to, which is .all a jury should think he reasonably deserved. 5 Dane’s Abr. 512. This principle is confirmed in a great number of cases. Johnston v. Col. Ins. Co. 7 Johns. R. 315; Yate v. Willan, 2 East, 132; Burrough v. Skinner, 5 Burr. 2640; Watkins v. Towers, 2 T. R. 275; Middleton v. Brewer, Peake’s Cas. 15; Bennett v. Francis, 2 Bos. & Pul. 550.
    The defendants’ plea expressly admits the promise as alleged in the declaration, and puts in issue nothing but the amount which the plaintiff reasonably deserved to have; and that question is expressly referred to the jury ; so that under the plea, the only pertinent evidence was the evidence offered, and which is objected to. If that evidence is inadmissible, nothing could be proved under this issue. The defendants say the contract alleged, and the one proved by them, are not different: if so, there can surely be no objection to the verdict. But then it is said, the contract proved by them is a limitation of the one alleged. This is clearly contradictory to the former position. It is also said the two counts are the same. This contradicts directly what appears by the counts themselves, and in all the books they are put down as different ; and the citation from 2 Chit. PI. which says they are not always both necessary, clearly supposes them to be different.
    It is said these counts are fictitious ; but it is difficult to tell in what the fictions consist; the second count is as dry a niatter of fact as could well be framed. It is said that bringing money into court is an admission of a special contract only. It would be difficult to find a reason or authority for this. The principle clearly is, that paying money into court admits the entire contract as alleged. There is no distinction as to the kind of contract.
    
      June 26th,
    
    But suppose the contract not admitted as alleged, it is submitted, that the contract which appears by the case is, in fact and effect, the same that is set out in the declaration. It is a contract for reasonable compensation, and the plaintiff may well maintain an action for such compensation. The condition, that the compensation should be determined by the opinion of the directors, is like the condition in a policy, that disputes shall be referred to arbitrators,; which does not preclude the party from bringing his action at law, and trying his case by jury.
   Wilde J.

delivered the opinion of the Court. The defendants pleaded a tender as to 300 dollars, part and parcel of the several sums claimed by the plaintiff, and at the trial contended that the plaintiff had not made out any legal right or title to further damages ; because it appeared by the votes of the corporation, that the plaintiff was to receive, from time to time, as a compensation for his services, such sum or sums as should be, in the opinion of the board of directors of the bank, considered as a reasonable and fair compensation ; and because it appeared that the board of directors did vote and determine that the plaintiff’s compensation for his services should be limited to the sum of 300 dollars. It was ruled at the trial, that the plaintiff was not bound to accept the compensation voted by the directors, unless the jury should be of opinion, that the sum voted was a reasonable compensation; and the question, whether it was a reasonable compensation, was submitted to the jury upon the whole evidence.

As the pleadings are, and talcing into consideration the legal effect of the tender, we are of opinion that the question as to reasonable compensation was properly left to the determination of the jury. The defendants, by tendering the sum of 300 dollars and bringing it into court on both counts in the declaration, must be considered as admitting the several prom ises as set out in the declaration; indeed there is an express admission in the defendants’ plea to this effect. The words are, ££ because they say, that after the making of the said several promises and undertakings in the said declaration mentioned,” &c. This clearly is an express admission that the defendants did make the several promises declared on ; and they are estopped to deny that these promises are truly stated ; nor can they add to them any qualification or limitation of their own liability ; and if there was evidence to this effect, it could have no legal effect against the defendants’ express or implied admission to the contrary.

As to the implied admission, it has been argued that the payment of money into court and a tender, is an admission of a special contract only, and does not apply to the common counts. We do not perceive any very good reason for this distinction ; but if there is any such distinction, it can only go to the exclusion of cases founded on implied promises. The case of Bennett v. Francis, 2 Bos. & Pul. 550, was on an implied promise for goods sold and delivered, and the bringing money into court was held to be an admission of the contract as stated in the declaration. The case at bar was founded on an express promise, or, in other words, on a special contract between the parties, and not on a promise implied by law. That part of the agreement, which referred the question as to the amount of compensation to the board of directors, has been waived by the parties. There is therefore both an implied and express admission, that the defendants made the contract as stated in the plaintiff’s declaration.

This is not like the case of Clarke v. Gray et al., 6 East, 564, which was a case against common carriers, who had given notice that they would not be responsible for more than £5 for the loss of any goods, unless such goods were entered and paid for as of a higher value. The goods in that case were of a higher value, and the declaration was in the common form, but the defendants were allowed to bring £5 into court, and it was held a good bar to the plaintiff’s recovery of further damages. The contrary doctrine was held in the case of Yate v. Willan, 2 East, 128, but we think the case of Clarke v. Gray et al. was rightly decided on the distinction, that the notice by the defendants amounted only to a limitation of the damages to be recovered in the event of the breach of the contract of carriage, and not to a qualification of the contract itself. That case was expressly decided on that ground, so that the decision does not militate against the rule in question.

We are of opinion, therefore, that the question as to what was a reasonable compensation for the plaintiff’s services was a question for the jury to determine, and that the plaintiff is entitled to judgment according to the verdict. 
      
       See Seaton v. Benedict, 5 Bingh. 31; 2 Stark. Ev (5th Am. ed.) 600 to 603; Jones v. Hoar, 5 Pick. (2nd ed.) 291, note 1; Cox v. Brain, 3 Taunt. 95; Bulwer v. Horne, 1 Nev. & Man. 117.
     