Carroll v. Giddings

58 N.H. 333

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1878
• Status: Published

Opinion

Bingham, J.

The defendant claims that the plaintiff cannot recover ; that his action should have been special assumpsit for the damage done him by the defendant in refusing to allow the plaintiff to perfect his contract.

If a special contract is open, not executed, and a party seeks to recover damages for a breach of it, he must declare specially, stating the contract and the breach, and general assumpsit will not lie. But when a contract is at an end, either by its provisions or by the wrongful act of the defendant, so that nothing remains to be done but to pay money, general assumpsit will lie. Moulton v. Trask, 9 Met. 577; 2 Greenl. Ev., s. 104; Canada v. Canada, 6 Cush. 15.

The act of the defendant gave the plaintiff the right to treat the contract as ended, and he can maintain his action of assumpsit on a quantum meruit. Chitty on Con. (11th ed.) 1091, note n.; Derby v. Johnson, 21 Vt. 17; Planche v. Colburn, 8 Bing. 14; Goodman v. Pocock, 15 A. & E. (N. S.) 576.

Judgment on the verdict.

Foster and Clark, J J., did not sit.