/2/ It was held on demurrer that an action would lie
for not procuring certain releases which the defendant had
undertaken to get.
Five years later another case /3/ came up, which was very like
that of the farrier in the reign of Edward III. It was alleged
that the defendant undertook to cure the plaintiff's horse, and
applied medicine so negligently that the horse died. In this, as
in the earlier case, the issue was taken on the assumpsit. And
now the difference between an omission and an act was clearly
stated, the declaration was held not to mean necessarily anything
more than an omission, and it was said that but for the
undertaking the defendant would have owed no duty to act. Hence
the allegation of the defendant's promise was material, and an
issue could properly be taken on it.
This decision distinctly separated from the mass of actions on
the case a special class arising out of a promise as the source
of the defendant's obligation, and it was only a matter of time
for that class to become a new and distinct [284] action of
contract. Had this change taken place at once, the doctrine of
consideration, which was first definitely enunciated about the
same time, would no doubt have been applied, and a quid pro quo
would have been required for the undertaking.
Pages:
332
333
334
335
336
337
338
339
340
341
342
343
344
345
346
347
348
349
350
351
352
353
354
355
356