Linningdale v. Livingston

Per Curiam. The plaintiff, upon the trial, abandoned the special agreement, upon which he had declared, and went upon the general indebitatus assumpsit for goods sold, by proving the delivery and acceptance of the logs, and that the special agreement was no longer subsisting and in force, but had been put an end to by the refusal of the defendant to permit the logs to be laid, and by appropriating them to his own use. This evidence was accordingly admissible; and the cases of Cooke v. Munstone, (4 Bos. & Pull. 351.) and Tuttle v. Mayo, (7 Johns. Rep. 132.) allow the party in such cases to recover on the general counts. It is admitted, in Bull. N. P. 139. to be now the rule that, if there be a special agreement, and the work be done, but not in pursuance of it, the plaintiff may recover upon a quantum meruit, for otherwise he would not be able to recover at all. The case óf Harris v. Oke is there cited, in which Lord Mansfield ruled at circuit, and with the approbation of Mr. Justice Wilmot, that where the evidence would support a general count, supposing bo special agreement laid, the plaintiff may recover upon it, though there be a special agreement laid, whether he attempts to prove it or not. This decision was cited and sanctioned by the K. E. in Payne v. Bacomb, (Doug. 651.) and by the supreme court of Massachusetts, in Keyes v. Stone. (5 Tyng, 391.) A judgment on the general count would, no doubt, be a bar to an action on the agreement. In this case, the plaintiff never could recover for the logs delivered, and which went to the defendant’s use, except [38] upon the general counts, for the agi~eemënt wa~ ndt catried fully into effect by him, and the performance had become impossible, by the act of the defendant. But the defendant offered the special agreement in evidence, and it was overruled. It seems to be admitted, in Bull. N. P. 139. and with a reference to Keck’s Case, in 1744, that the de- • fendant might, in such case, give the special agreement in evidence, with a view to lessen the quantum of damages. But the defendant here did not offer it with that view, or to throw any new light on the subject, but he offered it for the express purpose of defeating the action altogether, because there was such an agreement,- and because the plaintiff had failed in the performance of it. In that view, it was overruled as immaterial, and it was properly overruled. There was no pretence that the agreement in writing differed, in any material respect, from the one declared on and admitted by the plaintiff’s testimony. There would be no use then in setting aside the verdict merely' to give the defendant an opportunity of producing the written agreement, and the motion for a new trial is accordingly' denied. Motion denied: