148 Minn. 273 | Minn. | 1921
The improvement served a municipal purpose and the contract was one that the city had power to make, and, had the essential requirements of the law been complied with, the contract would have been enforceable. In such a situation the village may be compelled to pay the value of what it has received. The express contract disappears from the case. The cause of action arises, not from any contract on the subject, but from the general obligation to do justice which binds all persons, natural and artificial. First Nat. Bank v. Village of Goodhue, 120 Minn. 362, 139 N. W. 599, 43 L.R.A.(N.S.) 84. The obligation to pay is measured by the benefit which the village has received.
Plaintiff urges that if is entitled to the full amount of its claim, on the theory that the intrinsic value of the material furnished and the cost or value of the labor furnished were of that amount, that in law the benefit to defendant was this intrinsic value, irrespective of any use or
Nor does it proceed on the doctrine of an implied warranty. Obligations such as this -are sometimes called contracts implied in law, or quasi or constructive contracts. In fact they are not contracts at all, for there is no agreement. The obligation is imposed without regard to the assent of the party bound. The use of the-term contract rests solely on a legal fiction. Such obligations were originally called contractual or quasi-contractual, in order to secure their enforcement by the common law action of assumpsit, at a time when it was considered that a right could not be enforced, unless it could be' fitted into some existing form of remedy. To maintain assumpsit, it was necessary that there should be a promise, and to meet this requirement the courts resorted to the fiction of a promise where none in fact existed. 2 Harvard Law Rev. 63; Keener, Quasi Contracts, e. 1; Pomeroy, Remedies (3d ed.) §§ 512, 541; Nevada Co. v. Farnsworth, 89 Fed. 164; People v. Dummer, 274 Ill. 637, 113 S. E. 934; Mathie v. Hancock, 78 Vt. 414, 63 Atl. 143. Even now, long after the abolition of assumpsit as a form of action, these obligations are commonly expressed in terms of contract. Deane v. Hodge, 35 Minn. 146, 27 N. W. 917, 59 Am. Rep. 321. There is no necessity for doing so. Since technical forms of action have 'been abolished, the use of legal fiction is gone, and the fiction ought to be abandoned. The village is obliged to pay on the same principle applied in an action for money had and received, that is, that in equity and good conscience the deefendant ought to pay. Heywood v. Northern Assurance Co. of Detroit, 133 Minn. 360, 158 N. W. 632, Ann. Cas. 1918D, 241.
Evidence as to the cost of removal of the heating system was therefor properly received. The cost of removal was in no proper sense a counterclaim. It was part of the evidence bearing on the question of the real benefit which defendant received through the transaction.
There is some claim that, due to advance in prices, the value of the material used in the heating system would, if taken out, have reimbursed plaintiff for the amount of its claim, and that plaintiff offered to remove the plant and credit defendant with the price charged for it, but that defendant refused to permit its removal. Defendant’s witnesses deny that there was any such negotiation. There is no evidence that defendant derived any benefit from the material removed.
Order affirmed.