Miller, J.,
delivered the opinion of the Court.
The declaration in this case contains the common counts for goods sold and delivered, and two special counts to the effect, that one Fales being indebted to the plaintiffs in a certain sum of money, sold and delivered to them all his stock of dry-goods in his store in Hagerstown, which goods the plaintiffs took possession of and were about to remove to Baltimore, but before they were removed the plaintiffs at the request of the defendant sold and delivered to him, so many of said goods as Fales should say were saleable in the Hagerstown market, at. such price or valuation as should be agreed upon by said Fales as agent for the defendant and Henry J. Michael one of the plaintiffs, and it was agreed by and between the plaintiffs and defendant, that upon the completion of such valuation the defendant should execute his note for the amount so to be ascertained, payable in ninety days, with interest from the day of sale, and .upon executing this note 'and payment thereof, the plaintiffs agreed to execute a receipt in full for their debt against Fales, and also procure a release of a certain debt due from Fales to another party,.and”the plaintiffs aver that said Fales and Michael on the 21st of February, 1870, took an inventory of said saleable goods and assessed and valued them at the sum of $1173.35, and the same were left remaining in said store by order and direction of the defendant, and passed into his possession and control, that this inventory and appraisement was endorsed by Fales as correct, and was by the plaintiffs afterwards presented and shown to the defendant, and he was thereupon requested to execute his note for the said sum of $1173.35 payable at ninety days, with interest as aforesaid, but the defendant refused and still doth refuse to execute said, note and refused and still refuses to pay for said goods, although the plaintiffs with the knowledge of the defendant were ready to deliver the receipt and release aforesaid, and are still willing and ready to deliver the [279] same, and have offered so to do upon his executing said note and paying tlie same.
The sale, inventory and appraisement of these goods were made on the 21st of .February, 1870, and this suit was instituted on the 3rd of April, 1873, more than three years after the sale, but less than three years from the maturity of the note, which it is alleged the defendant agreed to execute. Among others the plea of limitations was pleaded, and the principal question in the case is whether the Statute is a bar to this action, or, in other words, was there error in granting the plaintiffs’ first and second prayers to the effect that, the Statute is no bar if the jury find the facts alleged in the special counts of the declaration, and in rejecting the defendant’s fourth prayer that if the jury find the contract set out in the declaration, and that the defendant afterwards declined or refused to carry out his part of it, then the plaintiffs’ cause of action accrued at the time of such refusal and declining, and if the jury find that more than three years elapsed between that time and the bringing of this suit, then under the pleadings the plaintiffs cannot recover.
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Miller, J.,
delivered the opinion of the Court.
The declaration in this case contains the common counts for goods sold and delivered, and two special counts to the effect, that one Fales being indebted to the plaintiffs in a certain sum of money, sold and delivered to them all his stock of dry-goods in his store in Hagerstown, which goods the plaintiffs took possession of and were about to remove to Baltimore, but before they were removed the plaintiffs at the request of the defendant sold and delivered to him, so many of said goods as Fales should say were saleable in the Hagerstown market, at. such price or valuation as should be agreed upon by said Fales as agent for the defendant and Henry J. Michael one of the plaintiffs, and it was agreed by and between the plaintiffs and defendant, that upon the completion of such valuation the defendant should execute his note for the amount so to be ascertained, payable in ninety days, with interest from the day of sale, and .upon executing this note 'and payment thereof, the plaintiffs agreed to execute a receipt in full for their debt against Fales, and also procure a release of a certain debt due from Fales to another party,.and”the plaintiffs aver that said Fales and Michael on the 21st of February, 1870, took an inventory of said saleable goods and assessed and valued them at the sum of $1173.35, and the same were left remaining in said store by order and direction of the defendant, and passed into his possession and control, that this inventory and appraisement was endorsed by Fales as correct, and was by the plaintiffs afterwards presented and shown to the defendant, and he was thereupon requested to execute his note for the said sum of $1173.35 payable at ninety days, with interest as aforesaid, but the defendant refused and still doth refuse to execute said, note and refused and still refuses to pay for said goods, although the plaintiffs with the knowledge of the defendant were ready to deliver the receipt and release aforesaid, and are still willing and ready to deliver the [279] same, and have offered so to do upon his executing said note and paying tlie same.
The sale, inventory and appraisement of these goods were made on the 21st of .February, 1870, and this suit was instituted on the 3rd of April, 1873, more than three years after the sale, but less than three years from the maturity of the note, which it is alleged the defendant agreed to execute. Among others the plea of limitations was pleaded, and the principal question in the case is whether the Statute is a bar to this action, or, in other words, was there error in granting the plaintiffs’ first and second prayers to the effect that, the Statute is no bar if the jury find the facts alleged in the special counts of the declaration, and in rejecting the defendant’s fourth prayer that if the jury find the contract set out in the declaration, and that the defendant afterwards declined or refused to carry out his part of it, then the plaintiffs’ cause of action accrued at the time of such refusal and declining, and if the jury find that more than three years elapsed between that time and the bringing of this suit, then under the pleadings the plaintiffs cannot recover.
It is well settled and familiar law, that if goods be sold on credit no action for their Value lies until the credit has expired, and it would be superfluous to cite authorities in support of that proposition. So it has been further held that if goods be sold to be paid for by a bill at a certain time, indebitatus assumpsit for goods sold and delivered will not lie until after the expiration of the time which the bill has to run. Dutton vs. Solomonson, 3 Bos. & Pull., 582. Again where goods were sold to be paid for in three months after a certain day, by a bill at two months, it was held to be a sale on a credit of five months and that assumpsit for goods sold and delivered could not be brought at the end of three months upon tlie neglect of the vendee to give his bill at two months, and that the only remedy the vendor then had was a special action on the case for [280] damages for breach of the contract in not giving the bill. Mussen vs. Price, 4 East, 147. In each of these cases the plaintiff was non-suited because he had brought his action before the credit had expired. In the more recent case in the King’s Bench of Helps vs. Winterbottom, 2 Barn. & Adol., 431, goods were sold at six months credit, and payment then to be made by a bill at two or three months at, the buyer’s .option, and this was held to be in effect a nine months.credit, and consequently that an action for goods sold and delivered commenced within six years from the end of the nine months, though more than six years from the end of the six months, was in time to save the Statute of Limitations. ' In that case also, the Court held the plaintiff might, at the end of the six months, have brought an action for hot giving a bill pursuant to the contract, but then he would not have recovered the whole price of the goods, but only such damages as the jury might have thought reasonable for that breach of the contract. We have not been able to discover that the authority of these decisions or the principle they establish, has ever been seriously denied or questioned. On the contrary, we find Helps vs. Winterbottom, cited as authority for the proposition it announces, in the latest editions of Chitty and Parsons on Contracts, (2 Chitty, 1231; 3 Parsons, 91,) and no opposing cases are referred to by those eminent text writers or their learned annotators. And in support of them we may refer to the cases of Price vs. Nixon, 5 Taunt., 338; Strut, et al., vs. Smith, 1 Cr. Mees. & Ros., 312, and Fergusson vs. Carrington, 9 Barn. & Cress., 59. It is true that Parke, J., in delivering his judgment in Helps vs. Winterbottom expressed some doubt whether the Statute was not an answer to the action, inasmuch as the agreement for giving the bill was optional in its form, and he declared he did not'see how it could be said there was any certain credit (after the six months) at the expiration of wdrich indebitatus assumpsit would lie for the [281] value of the goods, the contract so far as regards the bill being for a time at the debtor’s option, and added: “ I should be rather disposed to say here that the real contract was to pay in a bill at the end of six months, and if no bill was given at that time, the agreement was broken, and the credit ivas then at an end.” But in the case before us, there is no room for such a doubt. Here the contract was for an absolute credit of ninety days, the purchaser agreeing to give his note for the amount ascertained by the appraisement payable at that time. It is in form and substance the same as that in Dutton vs. Solomonson, where the goods were sold to be paid for by a bill at two months. The authorities cited and the positions taken in the very ingenious argument of the appellant’s counsel, are not, in our judgment, applicable to this peculiar class of contracts. This ivas not a sale and delivery upon condition of giving the note where no title would have passed, unless the note were given, and where upon refusal to give it, the vendor could have reclaimed the goods or brought trover for their conversion. But it is a case where the sale and delivery of the goods were absolute, and where the title to them immediately passed thereby, but they were to be paid for at a subsequent period. Nor was the credit dependent upon the execution of the note, so that it could be terminated or treated as at an end by the vendor upon the neglect or refusal of the purchaser to give the note. The note -would have given no additional security to the vendor and there was no stipulation in the contract for such security. In short, as we have already stated, this is simply the case of a sale of goods upon an absolute and unconditional credit of ninety days, and we are clearly of opinion no action for their value could, under any circumstances, have been sustained if brought before the expiration of that time. It follows as a necessary consequence, the suit was in time to save the Statute, if it is to be regarded as an action for the value of the goods, and not [282] simply an action for a breach of the contract by the defendant' in refusing to execute the note. Whether it be the one or the other of these actions is the sole remaining question on this branch of the case. It would have been a sad misapprehension and slip in the pleader to have brought the action in the latter form in which he could not have recovered the value of the goods, but only damages for the non-execution of the note, or to have so framed the declaration, as to leave the question in doubt. But upon this point we have no difficulty. The declaration contains the common counts for goods sold and delivered, and the special counts after stating the contract and performance, or readiness to perform every thing required to be done and performed by the plaintiffs, aver not only a refusal by the defendant to execute the note, but a refusal to pay for the goods. The former counts would have been sufficient without the latter, and the latter are in substance counts upon the special contract, setting it forth, and averring performance on the part of the plaintiffs, and non-performance of the whole and every part of it on the part of the defendant. Under either, the value of the goods could have been secured, for no principle involved in the action of assumpsit is sustained by a greater force of authority, than that where there has been a special contract, the whole of which has been executed on the part of the plaintiff, and the time of payment on the other side is passed, a suit may either be brought on the special contract or a general assumpsit may be maintained, and in the latter case, the measure of damages will be the rate of recompense fixed by the special contract. 2 Smith’s Lead. Cases, 47. It is not unusual in practice to join both sets of counts in the same declaration. In this case they are both framed and adapted to reach the same result, viz-: the recovery of the value of the goods sold and delivered, as fixed by the special contract. There is therefore no error in the rulings we [283] have thus far considered, nor in the rejection of the defendant’s seventh prayer, which relates to the same question of Limitations.
(Decided 10th November, 1875.)
The propriety of these rulings was the main subject of argument at bar on both sides, and their correctness being established, that determines the question of the plaintiffs’ right to recover. The remaining rulings may therefore be disposed of in a few words. As to the several modifications made by the Court to the defendant’s first, second, third and sixth prayers, it suffices to say, we find no error in them. The plaintiffs’ first prayer fairly submitted to the jury the finding of every fact essential to their right to recover the appraised value of the goods, with interest from the day of sale, and there was consequently no error in the rejection of the defendants’ eighth and ninth prayers, even if there were no other grounds of objection to them, and if there was any error in the plaintiffs’ third prayer, which could be reviewed and corrected by this Court, it is plain it was error which worked no injury to the defendant, and therefore not fatal to the judgment.
Judgment affirmed.