Hancock v. Tanner , 4 Stew. & P. 262 ( 1833 )

Taylor, J.

The plaintiff hi error coulends, that the judgment should be reversed, because the recovery was had upon the general counts, which was illegal, as the contract was not fully executed \\ hen the suit was brought; but, in part, executory. He admits that in the case of a special contract, when the plaintiff' has performed his part of the undertaking differently from the terms of the contract, there may be a recovery on the general counts, if nothing remains to be done under the contract; but insists, that in this case,-the defendant was still bound to deliver two thousand pounds of cotton, when the suit was instituted. If one man undertakes, by special agreement, to do any thing for another, as to build a house, for a specified compensation, and performs his part of the- agreement, he may abandon the special agreement, and recover upon a quantum meruit. In this case, no action could have been sustained upon the special count, as the plaintiffs had sold the cotton in Liverpool, instead of Now Orleans, and as they had performed their part of the agreement, different from the terms of it, they could only resort to the .mon-' ey counts, fora recovery. If they could not recover in this way, they would be wholly without remedy. To declare on the special agreement, would avail nothing: they had not fulfilled it according to its ten- or; and the defendant could always withhold the two thousand pounds of cotton, and thus, by his own default, secure himself against a recovery on the general counts. This would be an unheard of doctrine. .

But we believe the defendant could not, at the time the suit was brought, have delivered the two thousand pounds of cotton under the contract; he was bound to do so within a reasonable time, which was within the séason for shipping the crop then going to market, and certainly the plaintiffs can not be compelled to sue the defendant for this breach of his contract, if they do not choose to do so.

The judgment must be affirmed.