Moulton

argued that the evidence showed that the plaintiff did not expend the money for the defendant’s use.

A. L. Hart and Creed Haymond, for the Respondent.

The defendant having broken his contract, the plaintiff might have maintained his action for damages for the breach thereof, or he was at liberty to waive the tort, treat the contract as rescinded, and maintain his action on the common counts for money laid out and expended and for labor performed. (Parsons on Contracts, 5th ed. pp. 678, 679; Keys v. Harwood, 2 C. B. 905; Planche v. Colburn, 8 Bing. 14.)

*83 Whenever a contract of any hind has been abandoned by mutual consent, or has been rescinded by some act of the defendant, the plaintiff may resort to the common counts alone for remuneration for what he has done under the contract. (2 Grreenleaf on Evidence, secs. 101, 102,103, 104, et seq.')

The action is not brought for damages upon a breach of the express contract referred to in the evidence. The plaintiff relies only on the common count for money paid, laid out, and expended by him at the request of the defendant. It was always necessary, under this form of pleading, to establish the request, either directly or…