Edward H. Carey v. Jared W. Post

[Special Term, January, 1871.] Edward H. Carey v. Jared W. Post. In an action for services not upon an express contract, the petition must contain an averment that the services were rendered to the defendant on his request. Jordan, Jordan $ Williams, for plaintiff. Tilden, Stevenson $ Goodman, for defendant. [MAJORITY — Hasans, J.] Hasans, J. This is a suit brought for services rendered in looking after the private interests of the defendant in theMt. Auburn Street Railway Company for a period of fourteen months at $150 per month. The petition does not allege that the services were rendered at defendant’s request, and this omission is made the ground of a special demurrer. This would not be a good indebitatus count before the Code, nor is it sufficient now. Every fact which the plaintiff must prove to enable him to maintain his action, and which the defendant has a right to controvert in the answer, must be stated. It must appear that the defendant either actually requested the services rendered or did that which would amount to a request. It can not be said that there is justly due and owing to the plaintiff the amount claimed (which is a conclusion of law) unless the services were rendered on request or what is tantamount. This would then be a contract by which the party is bound. Demurrer sustained and leave to amend.