#### Jay S. Curtis v. The Flint & Pere Marquette Railway Company.

*¿Lssumpsit: Common counts; Money paid to defendant's use: Evidence; Duty of defendant to pay: Contract under seal.*An action of assumpsit on the common money counts ■will lie to recover the amount of a tax paid "by the plaintiff for the use of .the defendant, notwithstanding the duty of the defendant to pay the tax arose upon his contract unclqr seal for the sale of the land to the plaintiff. The action -is not "based upon the contract, which is matter of evidence only; and the duty of defendant to pay may "be established "by a contract under seal* as well as "by[any other.

*Cases distinguished.*This case is distinguished from *Butterfield v.*Seligman, *17 Mich., 95,*and *Gooding v. Ilingston, 20 Mich., 439.*

*Submitted on briefs June 11.*

*Decided June 18.*

Error to Saginaw circuit.

*Wismr & Draper,*for plaintiff error,

cited *Golbxirn v. Pome-roy, 44 JST. II., 19; Stent v. Hunt, 8 I£ll, S. 0., 223; Richardson v. Smith, 8 Johns., 439 ; Robertson v. Lynch, 18 Johns., 456; Miller v. Watson, 4 Wend., 267; Ladue v. Seymour, 24 Wend., 59 ; Butterfield v. Selig-man, 17 Mich., 95; Gooding v. Hingston, 20 Mich., 489.*

*William L. Webber,*for defendant in error..

Cooley, J:

In a suit in assurnpsit on the common money counts, the plaintiff below, — defendant in error, — sought to recover of the defendant below the amount of a tax claimed to have been paid for Mm. To show that the payment was made for the use of the defendant, a contract under seal was put in evidence, by which it appeared that defendant had sold to plaintiff the land on which the tax was levied; that he agreed by the contract to pay the tax, but had neglected to do so, and plaintiff had therefore paid it for its own protection. The defendant objected to the evidence, and requested *292of the court an instruction to the jury that the plaintiff' could not recover under the pleadings. This request was refused, and the plaintiff had judgment.

The point made is, that the action is really an action on the contract under seal; and though the statute *(Clomp. L.,.*§ *6194)*permits assumpsit to be brought on such a contract, it does not go so far as to permit a recovery on the common counts when, but for a resort to this form of action,, a special count on the contract would have been necessary.

We held in *Gooding v. Hingston, 20 Mich., 439,*that though the statute allows assumpsit to be brought on the judgments of courts of record, it does not dispense with any special averments in the declaration which were before essential. It was therefore necessary in suing upon a judgment to declare sjoeeially; proof of the judgment would not sustain an action on the common counts. The distinction between that case and this is obvious. This action, as has been stated, is brought to recover moneys paid for defendant’s use; and all that is necessary to maintain such an action is to show the duty of the defendant to pay, and the payment by the plaintiff to protect itself against injurious consequences. The duty may as well be established by a contract under seal as by any other; the action is not based upon it, but it is matter of evidence only. The case is the opposite of *Butterfield v. Seligman, 17 Mich., 95,*which is relied upon by the plaintiff in error. In that case plaintiff sought to recover moneys paid by him on a special contract for the purchase of land, by proving that defendant could not make a good title. The court held that he must count specially on a breach of the contract. The contract was still subsisting, and the breach relied upon was not the payment of money, but the conveyance of a title. In this case the breach of contract was the breach of duty on the-part of -defendant to pay the tax. Had the obligation to pay depended on a failure -of defendant to observe some other stipulation of the contract between the parties, so that-to establish defendant’s liability a breach of such other stip-*293illation must be shown, the case would haYe been analogous to *Butterfield v. Seligman;*but here the obligation to pay was absolute.

We have examined all the cases referred to by counsel for plaintiff in error, and none of them seems to us in point.

The judgment was correct, and must be affirmed, with costs.

The other .Justices concurred.