The
Court,
Gilpin, C. J.,
charged the jury, that the action was one in which the plaintiff was seeking to recover on the common counts in assumpsit as it was termed, for fifty cords of wood sold and delivered to the defendants, to which the defendants alleged that there was a special contract between them for the sale and delivery of a larger quantity—a specific quantity of one hundred and forty cords on the line of the Delaware Eailroad at the place mentioned, and the whole of which they were ready and willing to receive and pay for pursuant to such contract, hut that the plaintiff after delivering the fifty cords sued for by him, had wholly omitted, neglected and refused to deliver the balance, or any more of it to them, and they therefore contend that in consequence of his refusal and failure to deliver the whole of the wood contracted for, and to perform the agreement fully on his part, they were not bound in law to a partial performance of the agreement on their part, or to pay for the portion delivered to and received by them, or for anything less than the whole quantity under the contract. Because, as they allege, the contract between them was one entire, or indivisible contract for the sale and delivery, of not a part, but the whole of the specific quantity of wood stated, and that it should have been fully performed and completed in its entirety by the plaintiff, before he could maintain this, or any action against them upon it. The law in such cases had been well settled and well stated in a work of acknowledged authority from whicn he would read what was said in regard to it. The distinction between general or implied contracts and express or special contracts, lies not in the nature of the undertaking, but in the mode of proof. The action of assumpsit is founded upon an undertaking or promise of the defendant, not under seal; and the averment always is that he undertook and promised to pay the money sued for, or to do the act mentioned. The evidence of the promise may be direct, or it may be circumstantial, to be considered and weighed by the jury, or the promise may
be imperatively and conclusively presumed by law from the existing relations proved between the parties, in which case, the relation being proved, the jury are bound to find the promise; and after verdict the promise is presumed to have been actually proved. The law, however, presumes a promise only where it does not appear that there is any special agreement between the parties. For if there is a' special contract," which is still open and unrescinded, embracing the same subject matter with the common counts on a promise presumed or implied in law merely, the plaintiff, though he should fail to prove the special contract alleged and the express promise relied on in his case under the special count, will not be allowed to recover on the common counts for the same demand upon a presumed, or implied promise simply. But though there is a count on a special agreement, yet if the plaintiff fails altogether to prove its existence, or there is no proof of a special agreement in the case before the jury, he may then proceed and recover upon the common counts upon an implied promise to pay him whatever he may reasonably deserve and be justly entitled to receive upon the facts proved. The rules of law on the subject are that so long as the special contract continues executory, the plaintiff must declare specially; but when it has been performed and executed on his part, and nothing remains to be done but the payment of the price in money by the defendant, which is nothing more than the law would imply against him, the plaintiff may declare generally, or in the common counts upon the implied promise, or he may declare specially on the original contract and express promise, at his election. If the mode of payment was to be any other than in money, the count must be on the special or original contract. And if it was to be in money, and a term of credit was allowed, the action, though on the common counts, must not be brought until the term of credit has expired. This election to sue upon the common counts, where there is a special agreement, applies only to cases where the contract has been fully performed
by the plaintiff. But where the contract, though partly performed, has been abandoned by mutual consent of the parties, or has been rescinded, or defeated by some act on the part of the defendant, the plaintiff may resort to the common counts alone, for remuneration for what he has done under the special agreement. But in such case, it is not enough to prove that the plaintiff was hindered, or prevented by the defendant from performing the contract on his part; for in that case, as we have just seen, he must sue upon the agreement itself; but in such case, it must further appear from the circumstances, that he was at liberty to treat it as at an end. And where it appears that what was done by the plaintiff, was done under a special agreement, but not in the stipulated time and manner, and yet was beneficial to the defendant, and has been accepted and enjoyed by. him, though the plaintiff cannot recover upon the contract, from which he has departed, yet he may recover, upon the common counts, for the reasonable value of the benefit, which, upon the whole, the defendant has derived from what he has done. 2
Greenl. Ev. secs.
102, 103, 104. Such were the general rules which had now become well known'and established with regard to the matter, and as it appeared from the evidence that the wood was to be paid for in money at a certain price per cord when delivered to the defendants, to the amount of the freight upon it on the delivery and the balance by their note payable in four months thereafter, by which a credit for that length of time was to be allowed by the plaintiff on the residue of the price to be paid for it, which was at the rate of $2,50 per cord, if the jury were satisfied from the proof before them that such was the contract between the parties that it was not concluded and entered into prior to the date of the last letter which had been read in evidence from the defendants to the plaintiff on the subject, and which was the 16th day of September, 1862, or that this action was brought by him, which was to the following November Term of this court, before the four months had expired
from the time the quantity of wood in question and now sued for, had been delivered by him to the defendants, he could not recover, and their verdict should be for the defendants. And as there was no dispute or controversy as to that matter of fact, it vvas unnecessary to notice any of the other points which had been raised in the case.
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The
Court,
Gilpin, C. J.,
charged the jury, that the action was one in which the plaintiff was seeking to recover on the common counts in assumpsit as it was termed, for fifty cords of wood sold and delivered to the defendants, to which the defendants alleged that there was a special contract between them for the sale and delivery of a larger quantity—a specific quantity of one hundred and forty cords on the line of the Delaware Eailroad at the place mentioned, and the whole of which they were ready and willing to receive and pay for pursuant to such contract, hut that the plaintiff after delivering the fifty cords sued for by him, had wholly omitted, neglected and refused to deliver the balance, or any more of it to them, and they therefore contend that in consequence of his refusal and failure to deliver the whole of the wood contracted for, and to perform the agreement fully on his part, they were not bound in law to a partial performance of the agreement on their part, or to pay for the portion delivered to and received by them, or for anything less than the whole quantity under the contract. Because, as they allege, the contract between them was one entire, or indivisible contract for the sale and delivery, of not a part, but the whole of the specific quantity of wood stated, and that it should have been fully performed and completed in its entirety by the plaintiff, before he could maintain this, or any action against them upon it. The law in such cases had been well settled and well stated in a work of acknowledged authority from whicn he would read what was said in regard to it. The distinction between general or implied contracts and express or special contracts, lies not in the nature of the undertaking, but in the mode of proof. The action of assumpsit is founded upon an undertaking or promise of the defendant, not under seal; and the averment always is that he undertook and promised to pay the money sued for, or to do the act mentioned. The evidence of the promise may be direct, or it may be circumstantial, to be considered and weighed by the jury, or the promise may
be imperatively and conclusively presumed by law from the existing relations proved between the parties, in which case, the relation being proved, the jury are bound to find the promise; and after verdict the promise is presumed to have been actually proved. The law, however, presumes a promise only where it does not appear that there is any special agreement between the parties. For if there is a' special contract," which is still open and unrescinded, embracing the same subject matter with the common counts on a promise presumed or implied in law merely, the plaintiff, though he should fail to prove the special contract alleged and the express promise relied on in his case under the special count, will not be allowed to recover on the common counts for the same demand upon a presumed, or implied promise simply. But though there is a count on a special agreement, yet if the plaintiff fails altogether to prove its existence, or there is no proof of a special agreement in the case before the jury, he may then proceed and recover upon the common counts upon an implied promise to pay him whatever he may reasonably deserve and be justly entitled to receive upon the facts proved. The rules of law on the subject are that so long as the special contract continues executory, the plaintiff must declare specially; but when it has been performed and executed on his part, and nothing remains to be done but the payment of the price in money by the defendant, which is nothing more than the law would imply against him, the plaintiff may declare generally, or in the common counts upon the implied promise, or he may declare specially on the original contract and express promise, at his election. If the mode of payment was to be any other than in money, the count must be on the special or original contract. And if it was to be in money, and a term of credit was allowed, the action, though on the common counts, must not be brought until the term of credit has expired. This election to sue upon the common counts, where there is a special agreement, applies only to cases where the contract has been fully performed
by the plaintiff. But where the contract, though partly performed, has been abandoned by mutual consent of the parties, or has been rescinded, or defeated by some act on the part of the defendant, the plaintiff may resort to the common counts alone, for remuneration for what he has done under the special agreement. But in such case, it is not enough to prove that the plaintiff was hindered, or prevented by the defendant from performing the contract on his part; for in that case, as we have just seen, he must sue upon the agreement itself; but in such case, it must further appear from the circumstances, that he was at liberty to treat it as at an end. And where it appears that what was done by the plaintiff, was done under a special agreement, but not in the stipulated time and manner, and yet was beneficial to the defendant, and has been accepted and enjoyed by. him, though the plaintiff cannot recover upon the contract, from which he has departed, yet he may recover, upon the common counts, for the reasonable value of the benefit, which, upon the whole, the defendant has derived from what he has done. 2
Greenl. Ev. secs.
102, 103, 104. Such were the general rules which had now become well known'and established with regard to the matter, and as it appeared from the evidence that the wood was to be paid for in money at a certain price per cord when delivered to the defendants, to the amount of the freight upon it on the delivery and the balance by their note payable in four months thereafter, by which a credit for that length of time was to be allowed by the plaintiff on the residue of the price to be paid for it, which was at the rate of $2,50 per cord, if the jury were satisfied from the proof before them that such was the contract between the parties that it was not concluded and entered into prior to the date of the last letter which had been read in evidence from the defendants to the plaintiff on the subject, and which was the 16th day of September, 1862, or that this action was brought by him, which was to the following November Term of this court, before the four months had expired
from the time the quantity of wood in question and now sued for, had been delivered by him to the defendants, he could not recover, and their verdict should be for the defendants. And as there was no dispute or controversy as to that matter of fact, it vvas unnecessary to notice any of the other points which had been raised in the case. For as we have seen from the citations just read, as well as those which had been produced by the counsel for the plaintiff, in case the jury should be satisfied from the evidence before them, that the agreement was that the plaintiff was to sell and deliver to the defendants on the line of the railroad a quantity of wood at $3,75 per cord, and that the defendants were to pay for the freight of the same over the road to the city of Wilmington, which was $1,25 per cord, and which was equivalent to the price of $2,50 per cord for the wood delivered on the line of the road, with a credit thereon of four months from the delivery of it, that no action would lie to recover for the partial performance of a special agreement, until after the time liad expired which had been appointed for the full and complete performance of it by both parties, of course, the plaintiff* could not be entitled in law to recover upon it, if the action had been instituted prior to the expiration of that period. But if, on the contrary, the jury should be satisfied on the proof before them, that there was no such special or express contract between the parties, but the agreement was that the plaintiff was to sell and deliver and the defendants were to receive and pay for, without any credit thereon, the quantity of wood sued for, or any other quantity that he might choose to deliver at the place referred to, then the plaintiff would be entitled to recover, and the measure of his damages would be the current price per cord of such wood at the time, and at that place, when it was so delivered there.
The defendants had a verdict.