New Orleans, Jackson & Great Northern Railroad v. Pressley, Greer & Co. , 45 Miss. 66 ( 1871 )

SlMBALL, J. :

Pressley, Greer & Co. sued the New Orleans, Jackson and Great Northern Railroad Company in indebitatus assumpsit, for services rendered, in pumping water into the company’s tank, for the use of its locomotives during the year 1866.

On the trial the defendant offered in evidence a written contract, by the stipulations of which, Y. O. Pressley & Co. agreed to furnish a supply of water to the company’s tank, near Hazlehurst, for the year 1866, in consideration that the plaintiffs might employ the engine used in pumping the water, in sawing wood for the locomotives. Pressley & Co. were to put up the engine in thorough order, and to take good care of the same, and the machinery attached to it. The admission of the paper in evidence was objected to because it was not stamped. Thereupon the defendant proposed, then and there, to attach the stamp, and read the paper. This was refused, and the contract was withheld from the jury.

In a case decided at this term, where a similar application was made, we held that it was competent for the court to allow the stamp to be affixed by. the party propounding the paper in evidence. The refusal would be error.

2d. We cannot notice the refusal to grant a new trial. The record proper is silent as to what disposition was made of the motion. But, inasmuch as the cause will be remanded for another trial, it may be proper to state, in general terms, the principles which should govern it. This may be done in general terms, without a separate examination of the instructions granted and refused. If there is an express contract, the plaintiff cannot recover upon an implied one. If there be a special contract, in writing, or verbal, the plaintiff cannot employ the common counts, unless the special agreement has been executed or completely performed. 1 Chitt. Plea. 340. Indebitatus assum/psit -will only lie, in case of a special contract, where the money price is unpaid, and there has been full performance. Perkins v. Hart, 11 Wheat. 237; Bank of Columbia v. Patterson, 7 Cranch, 299.

Where there is a special agreement to pay for goods, or services, in any other way than in money, it must be specially declared upon. Raulett v. Moore, 1 Fost. 336. If the services for which this suit was brought were undertaken and performed under the written contract offered in evidence, the plaintiff ought to count specially on the agreement, because there was no money to be paid the plaintiffs on full performance, or it ought to be proved that this agreement had been waived, and another substituted. If the plaintiffs sustained damages by a non-performance by the company, of any stipulation on their part, that breach ought to be distinctly stated. When parties reduce their contract to specific stipulations, neither party can abandon it, and go for a quantum meruit. The special contract is to both parties the measure of right and of responsibility.

Judgment reversed.