Schumacher

The only question which need be noticed relates to the cause of action. If the suit is upon the contract, and not upon a quantum meruit et valebat, it is *373 conceded by tbe respondent that a nonsuit should have been granted.

"We think the action must be considered as upon the contract. If the complaint be regarded as counting on a quantum meruit et valebat, it certainly is a novelty. It sets out the contract in haec verba, and alleges a performance on the part of the plaintiff’s assignor, except as excused by the defendant, claims the contract price throughout and payment in gold according to the terms of the contract. Such is not the language of a complaint which counts on a quantum meruit or a quantum valebat. The language of the former is that the plaintiff has rendered certain services to the defendant, without any express agreement as to compensation, and that the same are reasonably worth a certain sum, which the defendant impliedly promised to pay, and for which he sues. So of the latter — that the plaintiff has furnished certain goods, without any agreement as to price, which are reasonably worth a certain sum, which the defendant impliedly promised to pay, etc. But we…