California Law Review

Volume 2 | Issue 3

Article 1

March 1914

Contract Distinguished from Quasi Contract

Joseph L. Lewinsohn

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Joseph L. Lewinsohn, Contract Distinguished from Quasi Contract, 2 Cal. L. Rev. 171 (1914).
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California Law Review

Volume II

MARCH, 1914

No. 3

Contradt Digtinguished From

Quasi Contraet'
The early common law did not recognize the validity of priGrowth toward such recognition has been
vate agreements.
gradual and unsystematic, and was probably more nfluenced by
the exigencies of procedure, the shifts and devices of counsel and
the prejudices of judges than by any theory of contract. 2 This
may account in a measure for the failure to appreciate the real
nature of contract until in very recent times, and the omission by
some contemporary courts, including the Supreme Courts of North
Dakota and California, to distinguish between contracts and obligations quasi ex contractu.
There are two essential elements in the true contract,-agr.eement and obligation. Agreement results from the volition of the
parties thereto, evidenced by words or overt acts. Obligation
is imposed by law, but arises from and is defined by the agree-

' With special reference to the Civil Codes and the decisions in
California, Montana and the Dakotas. In 1865, after a number of years
of arduous labor, David Dudley Field and his associates reported a
Civil Code for the State of New York, which the legislature passed,
but the governor vetoed. The influence of the New York County
Bar was sufficient to prevent the veto from being overridden. In 1867,
the draft of this code was adopted in the Territory of Dakota. California adopted it in 1872 with some changes, not pertinent to the
present subject. In 1877, Dakota readopted it as amended in California with modifications also not pertinent here. Montana has also
adopted the California Civil Code. The Field Civil Code is the basis
of portions of the Indian Contract Act. Code references ar.e to the
Civil Codes in the various states, as follows: Kerr's Cyc. Codes of
California, Montana Revised Codes of 1895, North Dakota Revised
Codes of 1905, and South Dakota Compiled Laws of 1908.
2 See, Sir Frederick Pollock in Ency. Britt. 11th ed. Title, Contract; Elliot on Contract. Sec. 11.

CALIFORNIA LAW REVIEW

ment to which it is attached. It might, therefore, be said that
a contract is a legally enforcible agreement. An agreement is
not legally enforcible unless it is between competent parties, is
supported by consideration, and is not contrary to judicial notions
of public policy.The Civil Codes define contract as follows:
"A contract is an agreement to do or not to do a specific
)4
thing."
This section should be read in connection with the next succeeding section, 5 which declares:
"It is essential to the existence of a contract that there
should be:
(i) Parties capable of contracting;
(2) Their consent;
(3) A lawful object; and
(4) A sufficient cause or consideration."
These code provisions have been quoted and paraphrased in
several decisions. 6 They were intended to state the common law,7
but while they are too reminiscent of Blackstone to be regarded as
an accurate statement of the present law, they are not likely to
mislead anyone in practice.
The conventional classification divides contracts" into three
classes,-express, implied in fact, and implied by law. Much confusion, leading to erroneous decisions, has been caused by this
classification, due to the suggestion it contains that contracts
implied in fact and contracts implied by law are closely related.
The truth is that express contracts and contracts implied in fact
are the same in principle. Both arise from agreement. The
difference between the two is superficial. In the former the
vehicle of thought is words; in the latter,, conduct, or words
3

Wald's Pollock on Contracts, 3rd ed. by Samuel Williston, page 7.

4 Civil Codes; Cal. 1549, Montana 2090, N. D. 5280, S. D.

1188. For a slightly different definition see. Robinson v. Magee 9
Cal. 81, 83.
5 Civil Codes; California 1550, Montana 2091, North Dakota
5281, South Dakota 1189.
6Loaiza v. Superior Court, 85 Cal. 11, 24 Pac. 707, 711. Amer.
Can Co. v. Agr. Ins. Co. etc., 12 Cal. App. 133, 137; 106 Pac. 720, 722.
Loma Prieta etc. Co. v. Hinton, 12 Cal. App. 766; 108 Pac. 528, 530.
7Oppenheimer v. Regan, 32 Mont. 110, 79 Pac. 695, 697.
8 This refers to simple contracts.
The Codes destroy the effect
of a seal.

CONTRACT AND

QUASI CONTRACT

and conduct.9 The so called "contract implied by law", on the

other hand, while sometimes difficult to distinguish in practice
from a true contract, is not a contract at all. It is obligation
imposed by law regardless of agreement and to meet the ends of
legal justice.
These distinctions are clearly set forth in Keener on Quasi
Contracts. The learned author says :-o
"The terms, 'express contracts' and 'contracts implied in
fact,' are used to indicate, not distinction in the principles
of contract, but a difference in the character of the evidence by which a simple contract is proved. The source of
the obligation in each case is the intention of the parties.
The term 'contract implied by law' is used, however, to denote not the nature of the evidence, by which the claim of
the plaintiff is to be established, but the source of the obligation
itself. It is a term used to cover a class of obligations where
the law, though the defendant did not intend to assume an obligation, imposes an obligation upon him notwithstanding
the absence of intention on his part, and in many cases in
spite of his actual dissent."
In Rhodes v. Rhodes,11 Lord Justice Cotton, discussing the
nature of the obligation incurred by a lunatic for necessaries,
said:
"Now the term 'implied contract', is a most unfortunate
expression, because there cannot be a contract by a lunatic.
But whenever necessaries are supplied to a person who by
reason of disability cannot himself contract, the law implies
an obligation on the part of such person to pay for such
necessaries out of his own property. It is asked, can there
be an implied contract by a person who cannot himself contract in express terms? The answer is, that what the law
implies on the part of such a person is an obligation, which
has been improperly termed a contract, to repay money
spent in supplying necessaries."
It will help to avoid confusion if the term "implied contract"
is discarded altogether. "Tacit contract" may be substituted for
9 See Nevills v. Moore Min. Co., 135 Cal. 561, 67 Pac. 1054.
IOp. 5.
144 Chan. Div. 94, 105.

CALIFORNIA LAW REVIEW

"contract implied in fact" and "quasi contract" for "contract implied by law." This terminology is used by the leading English
writers,'12 and is coming into general use in this country. The
term "quasi contract" does not seem satisfactory to the writer
but is employed because there is nothing better sanctioned by
1
usage.
Before turning to the authorities in the states under the Civil
Codes, -it may be observed that an appreciation of the true principles underlying contract and quasi contract is not merely of
academic interest. It is often of practical consequence, for example, in determining whether or not a cause of action exists,"'
in choosing the theory of a case,' 5 in applying the appropriate
rule in damages,' and in the construction of constitutional' 7 and
statutory 8 provisions.
The distinction between contract and quasi contract is recognized by Civil Codes. They declare:-' - 9
"An obligation arises either from: (i) The contract of
the parties: or (2) The operation of law .......
"An express contract is one, the terms of which are stated
in words. An implied contract is one, the existence and
terms of which are manifested by conduct."
The New York Code Commissioners, writing in 1865, appended
the following note to these sections as they appeared in their draft
of the proposed New York Civil Code: "The ordinary definition
of an implied contract includes obligations imposed by law upon
parties as between each other. These obligations are, however,
20
considered in another part of this code."
12 Wald's Pollock pp. 9-13, Anson pp 9, 22-23.
13 See Woodruff on Quasi Contracts, 4.
'4 Schaeffer v. Miller, 41 Mont. 417, 109 Pac. 970.
Cheasley v.
Soo Coal Co., 19 N. D. 18.
15 Wright v. Sonoma Co., 156 Cal. 475, 105 Pac. 409.
16Turner v. Webster, 24 Kans. 29.
17 Scarborough v. Dugan, 10 Cal. 305. Louisiana v. New Orleans,
109 U. S. 285.
18 Pete Fuel Co. v. Tuck, 53 Cal. 304. Babcock v. Briggs, 52
Cal. 502.
19Civil Codes;
Cal. 1619-1621; Mont. 2180-2182; N. D.
5208, 5327-5329; S. D. 1233-1235. Compare Indian Contract Act,
Chap. V; Commercial Laws of the World (American Edition), .Vol.
XVI, p. 55.
2ONew York Civil Code 1865 789-791. See also Civil Codes;
Cal. 1708-1715, 1427-1428; Mont. 2290-2297, 1920-1921; N. D.
5396-5393, 5207-5208; S. D. 1291-1298, 1114-1115.

CONTRACT AND QUASI CONTRACT

In view of the clear distinction in principle between contract
and quasi contract, the practical importance of this distinction
and its unequivocal recognition by the Civil Codes, one might
reasonably expect to find the judicial opinions in California, Montana, and the Dakotas dealing with the point, harmonious and
just. They are, however, far from either. It may, indeed, be
doubted whether or not the Civil Codes have had any influence
upon the decisions. The controlling sections have rarely been
cited, and so far as the writer's search discloses, never with a
full understanding of their significance. In Montana and South
Dakota, nevertheless, the distinction has been observed, while in
North Dakota and California it has been disregarded.
Turning now to the cases, let us take a general view, and then
proceed to a detailed examination, first of the cases involving
tacit contract and later of the cases involving quasi contract.
An able discussion of the distinction between contract and
quasi contract is found in Schaeffer v. Miller,2 a recent Montana
case. The opinion is by Mr. Justice Holloway, who said in part:
"In treating of quasi contracts or contracts implied by
law, as distinguished from contracts implied in fact, the supreme
court of Pennsylvania in Hertzog v. Hertzog, 29 Pa. St. 465,
a leading case upon the subject, says: 'In one case, the contract is mere fiction, a form imposed in order to adapt the
case to a given remedy; in the other, it is a fact legitimately
inferred. In one, the intention is disregarded; in the other, it
is ascertained and enforced. In one, the duty defines the
contract; in the other, the contract defines the duty. We
have, therefore, in law three classes of relations called contracts: (i) Constructive contracts, which are fictions of
law adapted to enforce legal duties by actions of contracts,
where no proper contract exists, expressed or implied. (2)
Implied contracts, which arise under circumstances which
according to the ordinary course of dealing and the common
understanding to men, show a mutual intention to contract.
(3) Express contracts."
In Siems v. Pierre Savings Bank, 22 a South Dakota case, it
was said:

21 Schaeffer v. Miller, 41 Mont. 417, 109 Pac. 970, 972.

227

S. D. 338, 64 N. W. 167, 168.

CALIFORNIA LAW REVIEW

"While it may seem illogical for the law to imply a promise
upon the part of one whose conduct and declarations clearly
disprove any intention to promise, still it is constantly done.
It is one of the fictions of the law which it seems convenient,
if not necessary, to retain until the courts adopt the doctrine
that such contracts are created by law, rather than implied by
it. Thus, if a husband wrongfully expels his wife from his
house, he is liable, as upon a contract implied or created by
the law to any person who furnishes her with necessary
supplies, although he gives notice to the tradesman himself
that he will not pay for the same."
The North Dakota and California cases show no little confusion of thought. Thus in Chesley v. Soo etc.,- Co.,28 which
involved an obligation quasi ex contractu, the Supreme Court of
North Dakota said:
"It is true that implied contracts are not entered into
by express words but are manifested by the conduct of
the parties; but they are made by the parties as a matter
of law with equal effect as though the terms are stated expressly."
The California cases also show a failure to distinguish between
contract and quasi contract. In Smith v. Moynihan,24 where the
question was whether or not the evidence showed a tacit contract, the court said:
"In general an implied contract, in no less degree than
in an express contract, must be founded upon an ascertained agreement, the substantial difference being in the mere
mode of proof by which they are respectively to be established. The law will imply that a party did make such a
stipulation as under the circumstances disclosed he ought
upon the principles of honesty, justice and fairness to have
25
made."
In Decelis v. Porter,2 6 the action was upon an obligation quasi
ex contractu. We find this comment in the opinion:
"If A objects to receiving the money of B, still, if he
received it, and more especially if he uses it for his own
2319
2444

N. D. 18, 20, 121 N. W. 73.

Cal. 53. 62-63.

25The italics
26

are the writer's.

65 Cal. 3, 2 Pac. 257, 3 Pac. 120.

CONTRACT AND QUASI CONTRACT

purposes his objection to receiving it would count as nothing
in defense of B's action to recover it. By using the money
he gives all the consent required. By such conduct his
objection is waived and displaced and consent and approval
take its place. It is equivalent to consenting originally."
Jennings v. Bank of California2 7 involved a tacit contract.
The court observed in the course of the opinion:
"An implied contract is one, the existence and terms of
which are manifested by conduct or, in the language of a
learned writer, 'is inferred from the conduct, situation or
mutual relations of the parties and enforced by law on the
ground of justice' (Metcalf, Contracts). In the present case
every consideration of justice leads to the implication of an
agreement for security." (Citing Civil Code, Sec. 1621).
Let us now consider in more detail the cases involving tacit
contract.
In Grant v. Dreyfus, 2 plaintiff was the keeper of a pasture,
upon which horses of various persons including defendant, ran at
large. Plaintiff inserted the following advetisement in the local
newspaper:
"NoTIcE.-G. Grant wants every horse taken out of Eagle
Canon pasturage as quick as possible, and, if not, the owner
will be charged fifty cents a day. G. Grant."
The defendant with knowledge of the advertisement left his horse
in the pasture. The court held him liable at the rate of fifty
cents per day.
By leaving the horse in the pasture defendant signified his
acceptance of the terms imposed. The case is clearly one of tacit
contract. There is no discussion of principle in the opinion, but
the decision is in harmony with this view, otherwise defendant
would have been held liable only for the reasonable value of
the pasturage, and not according to the terms of the advertise2 9
ment.
79 Cal. 323, 21 Pac. 852, 853.
120 Cal. XVII, 52 Pac. 1074.
App. 136; 109 Pac. 38.
27
28

.29 For

measure

of

Compare Reed v. Hickey, 13 Cal.

recovery in quasi-contract of tis type see,

Keener on Quasi Contract, pp. 330, 244; Nevada Mining Co. v. Farnsworth, 89 Fed. 164 (Utah C. C.); Heinze v. McKinnon, 205 Fed. 366
(N. Y. C. C. A.)

CALIFORNIA LAW REVIEW

Wright v. Sonoma Co.30 on its facts is very close to Grant v.
Dreyfus, the case just considered. In Wright v. Sonoma Co., the
facts were these; the county by one of its road commissioners
had been taking water from plaintiff's well under a bona fide claim
of right, whereupon plaintiff served a written notice upon the
road commissioner forbidding the taking of any more water, and
advising that in the event he should disregard the notice, plaintiff
"hereby demands" $5o.oo a day for each additional day the
water should be taken. The road commissioner continued to take
water until enjoined by court decree. Plaintiff then sued in express contract, alleging the foregoing facts; and demanded payment for the water taken, at the rate of $50.00 per day. The court
held that there was no express contract, and gave judgment
for defendant, but suggested that "the only claim open to plaintiff was for the reasonable value of the water."
Both court and counsel seem to have overlooked the fact that
if there was a true contract it was tacit and not express, because
the acceptance, if any, was manifested by conduct. But the
decision is correct. An acceptance of the terms of the notice
could not be inferred from the taking of water, as it was from
the use of the pastures in Grant v. Dreyfus, because in the present
case, the taking was under claim of right.
Jennings v. Bank of California,"1 presents an excellent illustration of tacit contract. A stock certificate, issued by a banking
corporation, contained a condition that no transfer would be made
upon the books of the company until after the payment of all
indebtedness by the one in whose name the stock stood. The
holder of a certificate, indebted to the bank in a large sum, transfeirred it to the plaintiff, who brought an action to compel the
bank to register him as a stockholder. Although the opinion
30

Wright v. Sonoma Co., 156 Cal. 475, 105 Pac. 409.

3179 Cal. 323, 21 Pac. 852. "Was there a contract for an equitable
lien? We think that such a contract must be implied [inferred] from
the conduct of the parties. We do not say that the mere acceptance
by the stockholder of the certificate, without objection would constitute a contract, in the absence of subsequent dealings with reference
thereto. It is not necessary to express an opinion upon such a case;
but we think that the acceptance without objection of the certificate
containing such a condition, and the subsequent borrowing money
from the bank without anything to exclude the idea that the condition
was to be binding amounts to an assent to it, so far as the particular
loan was concerned, and that a contract is to be implied [inferred]
that the stock was to stand upon the books as security for the loan."
(21 Pac. 853). The court then added the erroneous observations
quoted above.

CONTRACT AND QUASI CONTRACT

confuses tacit contract and quasi contract the decision was for
the defendant on the ground that there was a tacit contract between plaintiff's transferor and the bank giving the latter an
equitable lien on the stock.
Peerless Glass Co. v. Pacific etc., Co.,3 2 arose on theso facts:

The parties had negotiated by mail for the sale and purchase of
Mason fruit jars. Plaintiff, the intending seller, wrote in answer
to an inquiry that the "freight allowance" would be seventy-four
cents. He intended to convey the meaning that the freight rate
would be seventy-four cents. Defendant understood him to mean
that he would allow a discount of seventy-four cents and ordered
the goods on that hypothesis. The goods were shipped. Defendant then learned of his mistake but he nevertheless accepted and
used the goods. The court held that there was no contract but
defendant was liable for the value of the goods which the evidence showed to be the contract price.
It is obvious that in many cases there may be a difference between the reasonable value of goods and their contract price.
The result reached in the case was correct, but the reasoning
seems unsound. When the defendant retained the goods with
knowledge of the mistake as to terms, it is submitted, that he
tacitly accepted the offer in the sense in which it was made by
plaintiff, and such is the view generally taken in similar cases.33
He therefore should have been held for the contract price.
It will be observed that when the mistake is as to price and
the goods are accepted and used after knowledge of the mistake,
defendant's obligation necessarily is to pay the reasonable value
of the goods, but the obligation is nevertheless contractual. The
same thing is true when the contract is silent as to price.3 4
Such contracts as those just referred to are somewhat difficult
to distinguish in practice from obligations quasi ex contractu, to
pay for benefits conferred.35 If the mistake is not known to the
defendant when the goods are accepted the obligation is quasi

32

121 Cal. 641, 54 Pac. 101. See also Reed v. Weule, 176 Fed. 660.

(Cal. C. C. A.)

3 See Williston on Sales, sec. 460.

4 See Jules Levy & Bros. v. Mautz, 16 Cal. App. 666, 117 Pac. 936;
Bank v. Price, 12 S. D. 184, 80 N. W. 195.
35Wald's Pollock on Contracts, pp. 10-12, especially the American
Notes.
3

CALIFORNIA LAW REVIEW

contractual. 6 Whether or not the mistake is known before performance often involves a difficult matter of proof.
It is, of course, impossible to lay down a general rule to
determine whether or not in a given case the proof shows a
tacit contract. 37 But Lord Esher M. R. has made a generalization of value. In Ex parte Ford,38 that learned judge, said:
"Whenever circumstances arise in the ordinary business of life in
which if two persons were ordinarily honest and careful, the one
of them would make a promise to the other it may properly be
inferred that both of them understood that such a promise was
given and accepted."3 9
This brings us to the cases involving quasi contracts. "Quasi
contracts," said the late Professor Ames, "are founded (i) upon
a record, (2) upon a statutory, official or customary duty, or (3)
upon the fundamental principle of justice that no one ought un' 41
justly to enrich himself at the expense of another."

36 Ibid p. 11.
"Here Webster never assented to a contract to
work for $1.50 per day. He agreed to do certain work, and did it;
but his understanding was that he was to receive $3.00 per day.
Turner and Otis employed him to do that work and knew that he did
it, but their understanding was that they were to pay $1.50 per day.
In other words, the minds of the parties met upon everything but the
compensation, and as to that there was no aggragatio mentium.
What, then, should result? Should he receive nothing because there
was no mutual assent to the compensation? That were manifest injustice. Should his understanding bind both parties? That were
a wrong to them. Should their's control? That were an equal wrong
to him. The law, disregarding both, says, a reasonable compensation
must be paid. . .
Justice is done to all parties by ignoring any.
promise or understanding as to compensation, and giving to the laborer
compensation for the work done and requiring the party receiving the
benefit of such work to pay a just and reasonable price therefore."
per Brewer J. in Turner v. Webster, 24 Kans. 38.
37 In
the following cases a contract could not be inferred from
the evidence: Smith v. Moynihan, 44 Cal. 53; Nevills v. Moore Min.
Co., 135 Cal. 561, 67 Pac. 1054; Wright v. Sonoma Co., 156 Cal. 475,
105 P. 409; Fisher and Hunter Co. v. New England etc. Co., 27 S. D.
221, 130 N. W. 841; Murphy v. Murphy, 1 S. D. 316, 9 L. R. A. 820,
47 N. W. 142; International Society v. Hildreth, 91 N. W. 70,
11 N. D. 262.
38 16 Q. B. D. 305, 307.
38 Quoted in Wald's Pollock on Contracts, 3rd ed.
40 2 H. L. R. pp. 63-64, Ames, Lectures on Legal History, p. 160.
41 "4.
In Roman Law there were certain cases of negotiorum
gestio where defendant was liable, although there was no enrichment.
There is nothing corresponding in English law, or, rather, there are
only a few cases." MS. addition to above by Professor Ames, Scott's
Cases on Quasi Contract, p. 18. On what constitutes a benefit in the
law of quasi-contracts, see Fabian v. Wasatch Orchard Co.,. 125 Pac.
860 (Utah); Gillis v. Cobe, 177 Mass. 584,59 N. E. 455; and notes in Pa. Law
Rev. Vol. 61, p. 330; Columbia Law Rev. Vol. V, p. 538. In Zottman v.

CONTRACT AND QUASI CONTRACT

(i)
Upon a record. The early writers and judges called a
judgment a "contract of record" or a "contract implied by law,"
but at the present time the obligation of a judgment is generally
recognized as quasi contractual. 42 The nature of the obligation, it
seems, has never been considered in Montana and the Dakotas,
but in a number of California cases it has been held contractual.43
Thus the California Supreme Court has held a judgment to be
44
a contract within the protection of the federal constitution,
and that the justices' court act giving jurisdiction in contract
confers jurisdiction to sue upon a judgment. 45 Larrabee v. Baldwin,
is inconsistent with these cases. The court was called upon to con-

strue a statute which made "each stockholder

individually

and personally liable for his proportion of all the debts and liabilities of the company contracted or incurred during the time that
he was a stockholder." The action was upon a judgment rendered after defendant became a stockholder but upon an obligation incurred by the corporation prior thereto. It was contended that the judgment was a contract which created a new
obligation. The court held otherwise, saying through Sawyer
C. J.,- 7
"The claim . . . . that the judgment is itself
a contract creating a new debt

. is too absurd to re-

San Francisco, 20 Cal. 96, 81 A. D. 96, plaintiff had entered into a

contract with the city to construct an iron fence around a public
square. The contract called for a wooden base and failed to provide
for painting the fence. Individual members of the council directed
plaintiff to put in a stone base and paint the fence which he did. He
was not permitted to recover in quasi contract for the extra work. See
opinion of Field, J. pp. 107-108; see also U. S. v. Pac. Ry.. 120 U. S.
240; Wald's Pollock 3rd ed. p. 11; Columbia Law Rev. Vol. XI, p. 85.
But the scope of the quasi contract is beyond the purview of this
paper. See Keener on Quasi Contracts: Woodward, the Law of Quasi
Contracts, Chap. 1; and notes in Columbia Law Rev. Vol. VII, pp.
123, 418, id. VIII, pp. 58 and 654. See also Rebman v. San Gabriel
Land Co., 95 Cal. 390, 30 Pac. 564; De Celis v. Porter 65 Cal. 3, 2 Pac.
257, 3 Pac. 120; Rose v. Foord, 96 Cal. 152, 30 Pac. 1114; Richeter v.
Union etc. Co., 129 Cal. 367, 62 Pac. 39; Hayes v. County of Los
Angeles, 99 Cal. 74, 79, 33 Pac. 766; Babcock v. Briggs, 52 Cal. 502.
42 See Elliot on Contracts, Sec. 2 n. 7, collecting the cases.
43 Robinson v. Magee, 9 Cal. 81; Scarborough v. Dugan, 10 Cal. 305;
Stuart v. Lander, 16 Cal. 372, 375; Reed v. Eldredge, 27 Cal. 247; Wallace v. Eldredge, 27 Cal. 498; Bean v. Loryea, 81 Cal. 153, 22 Pac. 513.
44Robinson v. Magee, 9 Cal. 81 (1858); Scarborough v. Dugan, 10
Cal. 305, 308; Contra, Louisiana v. New Orleans, 109 U. S. 285. See

Note, Columbia Law Rev. Vol. 12, p. 272.

45 Stuart v. Lander, 16 Cal. 372, 375; Contra, Dusenbury v. Speir,

77 N. Y. 144; O'Brien v. Young, 95 N. Y. 428; Compare, Gutta
Percha, etc. Co. v. Mayor, 108 N. Y. 276, 15 N 1. 402.
46 35 Cal. 155.

4 id. p. 168.

CALIFORNIA LAW REVIEW

quire argument to refute it. That a judgment is a contract of
record, in a certain legal sense, may be conceded, but it creates
no such new liability, as the statute in question contemplates."
It is to be hoped that in the next case involving the question, the
California Supreme Court will have its attention called to
Larrabee v. Baldwin, and the decisions in other jurisdictions.
(2)
Upon a statutory or official duty. In Montan" and
South Dakota, 49 it has been held, in accordance with the view
now general, 0 that obligations arising from official and statutory
duties are quasi contractual and not contractual.
The point is neatly illustrated in Oppenheimer v. Regan, 51 a
Montana case. An action for damages was brought in the justice's
court against a sheriff for failure to satisfy a judgment out of
funds in his hands. The statute gave the justice civil jurisdiction
of the contract. The court held that the justice was without
jurisdiction in the action, saying: "The gist of the action is the
recovery of damages for nonperformance of official duty, and
the penalty imposed by law for the nonperformance."
The California statute imposing personal liability upon stockholders in proportion to their holdings for "all debts or liabilities contracted or incurred" by the corporation has been the subject of a conflict of authority. In one line of cases judicial
opinion has it that the obligation arising from the statute is conthe obligation
tractual,5 2 while in another it has been held5 that
3
is imposed by law, i. e. is quasi contractual.
The leading case for the first view is Kennedy v. California
Savings Bank.54 The question there presented was whether
or not a suit against stockholders upon their statutory liability
would support an attachment,-which will issue only in actions
grounded upon contract. Defendant had moved to dissolve the
attachment for two reasons, the first of which was "that said
48

Oppenheimer v. Regan, 32 Mont. 110, 79 Pac. 695.

49 Board of Education v. School Dist. No. 19, 23 S. D. 429, 122

N. W. 411.
50 Elliot on, Contracts, sec. 3. n. 9, collecting the cases.
5132 Mont. 110. 79 Pac. 695.
52 Dennis v. Superior Court, 91 Cal. 548, 27 Pac. 1031; Kennedy v.
Calif. Say. Bank, 97 Cal. 93, 31 Pac. 846; McGowan v. McDonald, 111
Cal. 57. 43 Pac. 418: Miller & Lux v. Katz, 10 Cal. App 576, 102 Pac.
946; Thomas v. Wentworth Hotel Co., 158 Cal. 275, 110 Pac. 942, Kiefhaber Lumber Co. v. New York Lumber Co., 15 Cal. App. 37, 113
Pac. 691.
53 Green v. Beckman, 59 Cal. 545; Hunt v. Ward, 99 Cal. 612, 34
Pac. 335; King v. Armstrong, 9 Cal. App. 368, 99 Pac. 527.
54 97 Cal. 93, 31 Pac. 846.

CONTRACT AND QUASI CONTRACT

action is upon a statutory liability and not upon a contract."
A divided court upheld the attachment. The basis of the decision appears from the following excerpt: 5
"The necessary legal effect of the conditions prescribed
(by the statute) is that a corporation when created becomes the agent of its stockholders to make such contracts
and incur such liabilities as are authorized by law and
It would seem,
its articles of incorporation ........
therefore, that an action against a stockholder to recover
his proportion of the amount due upon a contract made by
a corporation, which is only an agency adopted by him, for
the transaction of business, was essentially an action
founded on contract."
The proposition that the relation of principal and agent
exists between stockholders and corporation must be dismissed
as a figure of speech. 56 The theory of contractual liability is
usually placed upon a different ground, namely, that the rules
of positive law become terms of the stockholder's subscription
contract and the stockholder therefore contracts for a personal
liability according to the tenor of the statute.57 This theory is
equally untenable. If there be such terms in the stockholder's
contract, they are placed there by the courts. In other words,
they are "conditions imposed by law," and the basis of such
conditions is quasi contractual. 58 The stockholder's contract is
with the corporation and not the creditor. To permit the creditor to sue upon this contract would certainly present an interesting innovation upon the beneficiary doctrine, which apparently
has not been considered by the profession.
Whether or not the stockholder's obligation is truly upon contract may be tested by applying it to situations such as these:
Supposing that it be stipulated in the articles of incorporation that stockholders shall not be individually or personally
liable for any of the corporate debts or liabilities; or supposing
that the statute declaring the stockholders liable be passed after
55 97 Cal. at p. 96. 31 Pac. at p. 847.
56,"Whenever a corporation makes a contract, it is the contract of
the legal entity; of the artificial being created by the charter; and not
the contract of the individual members." Taney C. J., in Bank of

Augusta v. Earle, 13 Pet. 519, 587, 10 L. ed. 274.

5 See Whitman v. Oxford National Bank, 176 U. S. 559, 44 L. ed.

587.
58 Keener on Quasi Contracts, p. 225; Costigan, The Performance

of Contracts, pp. 7-8.

CALIFORNIA LAW REVIEW

incorporation,--are the stockholders personally liable in either
event? Surely there is neither express nor tacit assent. Nevertheless, the California Supreme Court has held stockholders personally liable in just such cases.5 9 The writer has no quarrel
with the decisions, but the opinions place the liability upon
contract. Is it not clear that its true basis is quasi contractual?
No decisions have been found in Montana or the Dakotas
dealing with this question. The American law generally is in
flux. The preponderance of judicial opinion regards the obligation as contractual." But it is believed that many of the cases
adopting that theory are distinguishable. The point has usually
arisen in actions brought in sister states upon the statutory liability. Under the circumstances, the precise inquiry has been
whether or not the court has jurisdiction in view of the familiar
rule that courts of the forum will not enforce penal statutes of
a foreign jurisdiction. On this question the authorities divide.
Many hold the statutes to be penal. 6'
The courts holding the statutes to be not penal, generally do so on the
ground that the statutory obligation is contractual, 62-which
seems to involve a contradiction in terms. The doctrine that
the obligation is contractual apparently owes its existence to the
argument that it is not penal. Waiving the question as to
whether a statutory obligation may be contractual, does not
this reasoning involve a non-sequitur? Must a statute be either,
penal or contractual? Remedial statutes, having no relation to
contract, are often enforced in sister states, for example, statutes
authorizing actions for wrongful death. 63
Not only are the authorities holding the statutes making
stockholders personally liable to be penal, contrary to Kennedy v.
Bank, but there is also good authority that the obligation is
quasi contractual. There are decisions to that effect in New
York, Massachusetts, New Hampshire, Rhode Island, the United

59Thomas v Wentworth Hotel Co., 158 Cal. 275, 110 Pac. 942;
McGowan v. McDonald, 111 Cal. 57, 43 Pac. 418.
60 Elliot on Contracts, Sec. 3 n. 11; Cook on Corporations 6th Ed.,
Vol. I, pp. 585, 588, 591-594; but see id. Sec. 214, 217, 223, at pp. 595-599,
and note in 22 L. R. A. n. s. 256.
61Cook on Corporations, 6th Ed. Vol. I, pp. 595-599.; Compare,
Wharton on Conflict of Laws, 3rd ed. pp. 245-247.
62 Cook on Corporations, 6th Ed. Vol. I. pp. 585, 588, 591-594.
63 Powell v. Great Northern Railroad, 102 Minn. 448, 113 N. W.
1017. See Hancock National Bank v. Farnum. 20 R. I. 466, 40 Atl. 341.

CONTRACT AND QUASI CONTRACT

States Supreme Court and in other jurisdictions."
In one of the
ablest and most learned opinions6" dealing with the question, the
Supreme Court of New Hampshire, speaking through Blodgett,
C. J., said, quoting from an earlier case:
"The liability which the plaintiff seeks to enforce is a
mere creature of the statute, having none of the elements of
a contract, whether express or implied. It is a naked, statutory liability, entirely unknown to the common law, for
the indebtedness of the corporation, however it may accrue,
whether from the breach of a contract or the commission
of a tort. The stockholder is not liable upon the contract
in the one case, nor for the tort in the other, but, under the
statute, for the debt against the corporation which may
grow out of either." 6
The writer is aware that the question under discussion is one
of statutory construction. But upon what theory of construction can a statute, imposing personal liability upon stockholders
for "all debts and liabilities contracted or incurred (by the
corporation)" be held to create a contract, which must arise
from agreement of the parties thereto? The legislature itself
seems to have regarded the statute as imposing an obligation
ex lege,6 7 and this construction has been accepted by the courts
in a number of cases under the statute of limitations. 68
Can it
be that the obligation is quasi-contractual for some purposes
and contractual for others? It is submitted that the doctrine of
64Knickerbocker Trust Co. v. Iselin, 185 N. Y. 54, 113 Am. St. 863,
77 N. E. 877; New Haven etc. Co. v. Linden Spring Co., 142 Mass 349;
Crippen v. Laighton, 69 N. H. 540, 46 L. R. A. 467, 76 Am. St. 192, 44
AtL 538; Hancock National Bank v. Varnum, 20 R. I. 466, 40 Atl. 341;
Cristopher v. Norvell, 201 U. S. 216, 50 L. ed. 732. See also cases
collected 69 N. H. 540, 551-552, S. C. 76 Am. St. 192, 198-199.
65 Crippen v. Laighton, supra.
86"Certainly, the ordinary elements of a contract are wanting.
The minds of the stockholder and corporation creditor have not met
upon the subject matter of the original debt; no credit has been given
to the stockholder directly; he has not directly received the consideration, nor has he made a promise, express or implied. There is nothing
between them which at common law would be regarded as a contract.
But the statute imposes a liability upon grounds of equity and public
policy.......
W.e are aware that the greater number of cases call
the liability a contract . . . but we think it much more accurate
to say that the liability is a statutory liability simply, incidental to the
ownership of stock, than to say that it is a contract." per Stiness J. in
Hancock National Bank v. Farnum, 20 R. I. 466, 471, 40 Atl. 341, 343.
67 Code of Civil Procedure, Cal., sec. 338 sub 1.
68 Cited in Note 53.

CALIFORNIA LAW REVIEW

Kennedy v. Bank is unsound. Perhaps one can not expect
that it will be speedily overruled, but until it is, the law in
California must be charged with a failure to accept the principle that an obligation imposed by statute is quasi contractual.
(3) To prevent unjust enrichment from benefits conferred.
That portion of the law of obligations quasi ex contractu
which seeks to prevent unjust enrichment is of very wide scope,
how wide may be gathered from the fact that it has recently
been the subject of an extensive treatise. It will be necessary
to confine the discussion here to the cases arising under the
principle, so often invoked in practice, that one may not retain
money which in equity and good conscience belongs to another.
The duty following from this principle is often erroneously
treated as contractual. 69 Its true nature has been observed in
Montana" and South Dakota, but disregarded in North Dakota.
The cases in California are in conflict.
Schaeffer v. Miller,72 a recent Montana case, is instructive on
the point. In the course of negotiations for the purchase of real
estate from the defendant, plaintiff had paid defendant money
on account of the purchase price. The negotiations fell through,
and plaintiff brought action for the recovery of the money paid.
Defendant pleaded that the action was barred by the three year
statute of limitation, governing obligations other than contract.
Plaintiff contended that the statute was not applicable as the
action was on an implied contract, and so governed by the five
year statute. The Supreme Court of Montana upheld the plea.
In the course of a well reasoned opinion, it was said :3
"There was not any agreement between Miller and
Schaeffer that Miller should return the money if the
negotiations failed, or at all. There was not any meeting
of minds and not any consideration; therefore there was
not any contract as that term is generally understood. But
Miller received money which in equity and good conscience
69 "In one word the gist of the action is that defendant, from the
circumstances of the case is obliged by the ties of natural justice and
equity to refund the money." per Lord Mansfield in Moses v. Macpherlan, 2 Burr 1005, 1 W. B1. 219. See also notes in Pa. Law Rev.
Vol. 61, pp. 341-343, 425.
70 Schaeffer v. Miller, 41 Mont. 417, 109 Pac. 970.
71 7 S. D. 338, 64 N. W. 167.
bee also note in Columbia Law
Rev. Vol. VIII, p. 125.
7241 Mont. 417, 109 Pac. 970.
73 41 Mont. 417, 109 Pac. at 971-972, 973.

CONTRACT AND QUASI CONTRACT

he ought to turn over to Schaeffer, and upon this fact alone
the law implies a promise on his part to do so; and this
obligation created or implied by law, is termed by the courts
and law writers a quasi* contract, a contract implied by law,
or a constructive contract. It is a pure legal fiction; it lacks
two of the essential elements of a contract as defined in
. . . .the Revised Codes, and as generally understood."
A similar question was before the Supreme Court of North
Dakota in Chesley v. Soo Coal Co. et al, 7 The issue raised was
whether or not after the disaffirmance of a corporate contract,
the officers were personally liable in an action to recover back
the consideration. The statute made officers of foreign corporations, which had failed to comply with the requirements for admission, personally "liable on any and all contracts of such
foreign corporations made within the state." The corporation
of which defendants were officers, came within the class referred
to. The court held the defendants personally liable. The following 57 from the opinion by Morgan, C. J., discloses the reasoning of the courts.
"The precise question before us is:
What was the
status of the contract and of the parties thereto after plaintiff had rescinded it? The rescission of it wiped out the
contract, so far as basing any affirmative action on it relating
to its enforcement, or for damages for its breach. It destroyed all its vitality, and the relation of the parties thereto
as an express contract was the same as though it never had
been entered into. This much is conceded by both parties.
Whether the conceded obligation of the defendant company
to restore everything of value which had been received by
it under the contract before it was rescinded can now be
enforced against the officers of the company is the issue in
this case. In other words, does section 4698, supra, make
officers of a foreign corporation not complying with our
statute pertaining to their right to transact business in this
state liable on the implied contracts of the corporation?
The language of the section is that they are liable "on any
and all contracts of the corporation." This language is

74

121 N. W. 73, 19 N. D. 18.

at n. 20.

75id.

CALIFORNIA LAW REVIEW

broad enough to include contracts implied by law. We
think it would be failing to give effect to the language of
the section to restrict its application to express contracts.
The rescission of the express contract does not affect rights
growing out of it thereafter as implied obligations on the
part of the defendant company. Contracts are classified as
express or implied by the statute of this state, and section
4698 in effect makes officers liable upon a breach of either
by the corporation."
The court apparently did not recall that there is such a
species as the tacit contract, and failed to appreciate the true
basis of obligations quasi ex contractu. The decision, it is submitted, is erroneous.
The California cases are in conflict. The question has arisen
under the attachment statute, which restricted attachments to
actions "upon a contract express or implied, for the direct payment of money."
In Pete Fuel Co. v. Tuck7 it was held that an attachment may be issued in aid of an action to recover back money,
paid under a contract to furnish machinery which had been
disaffirmed for failure of consideration. On the other hand, in
Babcock v. Briggs77 the court summarily decided that an action

in assumpsit for money had and received, growing out of trover

which had been waived, would not support an attachment.
In Pete Fuel Co. v. Tuck the court said :78
"The authorities appear to be uniform to the effect that
when a sum of money has been paid upon a consideration
which has entirely failed, the law implies a promise to refund it. On the facts stated in the complaint there was,
therefore, an implied contract for the direct payment of
money, which brings the case within the very terms of the
statute defining the cases in which an attachment will
issue."
It has been held that the provisions of the statute of limitations governing contracts are not applicable where the plaintiff
disaffirms the contract, and proceeding in avoidance thereof, sues

7 653
7

78

Cal.

04.

52 Cal. 502.
53 Cal. at p. 305.

CONTRACT AND QUASI CONTRACT

to recover back the consideration."
In Richter v. Union etc.
Co., 0 a case involving the point, the court said in the course of
the opinion:
"But the action is not for a breach
tract, but upon an obligation growing
to perform it ........
the statute
;un until he, (the plaintiff), made his
the contract and to sue for the money
ant under it."

of the orginal conout of the failure

could not begin to
election to rely on
paid to the defend-

It will be observed that a court may appreciate the distinction between contract and quasi contract and still hold that the
legislature intended to cover quasi contract by the term
"contract" or the phrase "contract express and implied." 8'
But
can a court properly so hold in face of the sections of the Civil
Code providing that "An obligation arises either from: (i) The
contract of the parties; or (2) The operation of law." . . . .
"A contract is either express or implied; an express contract
is one the terms of which are stated in words and an implied
contract is one the existence and terms of which are manifested
by conduct?82
From the foregoing pages it appears that the conventional
term "implied contract" embraces the mutually exclusive ideas
of tacit contract and quasi contract. The Civil Codes use the
objectionable term, but in the sense of tacit contract alone. The
cases in California, Montana and the Dakotas are not in agreement. In Montana the true principles have been clearly understood, lucidly expounded, and correctly applied. The South
Dakota decisions are sound. In the single case where an appreciation of the distinction was necessary to the decision, the North
Dakota Supreme Court has gone wrong. The California courts
fail to discriminate between the two obligations, and the cases
are involved in contradictions and inconsistencies.
Many obligations quasi ex contractu, as those arising from
judgments and official or statutory duties, do not bear the remot-

7996 Cal. 154. 30 Pac. 1114, 129 Cal. 367, 62 Pac. 39. Compare
Nevada Min. Co. v. Farnsworth, 89 Fed. 164 (C. C. Utah); Tabor v.
Big Pittsburg etc. Co., 14 Fed. 636 (C. C. Colo.) See Woodward,
Quasi Contracts, 260-262.
80 62 Pac. at 1p. 41.
81Nevada Min. Co. v. Farnsworth, supra
82 Civil Code, Cal., 1428, 1619-1621.

CALIFORNIA LAW REVIEW

est superficial resemblance to the true principle. It was fully appreciated by the Roman jurists, 83 but common lawyers have been
slow to grasp it. Does not the explanation lie in this? The
early common law exalted procedure over substantive law. If a
suitor could not bring his grievance within an existing writ or
formula he was turned away remediless. Some cases of quasi
contract received legal sanction in the action of assumpsit, before
the recognition of the validity of simple contracts.8 4 In the
course of time assumpsit became the remedy for practically all
breaches of contract as well as for breaches of duty other than
tort. Looking at the form rather than the substance, the common law came to regard assumpsit as an action ex contractu and
all matters cognizable in assumpsit as contracts. This furnishes
a good illustration of the truth of a remark attributed to Lord
Mansfield, "nothing in law is so likely to mislead as a metaphor."
JOSEPH L. LEWINSOHN.
University of North Dakota.

83

See Maine's Ancient Law, 3rd ed., p.33 2 ; Scott's cases on Quasi

Contracts, pp. 1-3.

84See Keener, Quasi Contract, pp. 14-16; Ames, History of As-

sumpsit, Harv. Law Rev. Vol. II, pp. 1, 53; Jenks, Short History of
English Law, Chap. 10; Schaeffer v. Miller, supra.