¶1The opinion of the court was delivered by
¶2At the time the plaintiff delivered the articles charged in his account, did he do it in contemplation of creating any debt against the defendant? or in view of creating any obligation on the part of the defendant to pay for them ? If he did not, it is difficult to see upon what grounds he can claim to recover pay for them. If a contract existed between the plaintiff and the defendant, which required of the plaintiff the performance of the same duties which he in fact performed, then by so doing he was discharging his own liabilities, instead of imposing others upon the defendant. There was no express promise to pay the plaintiff for these articles, and from the facts found by the auditor none can be implied. The action on book cannot be sustained, unless there is a promise, express or implied, to pay for the articles charged. No action could be maintained to recover pay for these articles, for the reason that no promise, express or implied, exists to pay for them. The plaintiff was fulfilling his own promise, and discharging his own liability, by the delivery of them. The auditor has found the contract upon which the articles were delivered. If the parties had mutually rescinded this contract, a promise perhaps might have *658been reasonably implied, that the defendant would pay for the articles thus delivered while the contract was in force. But the auditor finds that the defendant insisted upon his right, by the terms of the original contract, to take his boy away if he was dissatisfied ; — which negatives the idea of the parties having rescinded the contract.
¶3The auditor farther finds that the plaintiff did not charge the articles till after the boy left him, — and that, when delivered, he did not intend to charge them, — and nothing has since transpired which gives him any right to charge them. If the plaintiff has any claim upon the defendant, it is for damages for a breach of the contract, or for refusing to fulfil the contract, and the action on book account is not the appropriate remedy.
¶4Judgment affirmed.