Bradley v. Levy , 5 Wis. 400 ( 1856 )

By the Gourt,

Whitoh, C. J.

We shall express no opinion upon many of tbe questions discussed by the counsel who argued this cause, for the reason that the declaration of the plaintiff below is insufficient to warrant a recovery of a portion of the sum claimed by him, upon the facts relied upon for that purpose.

There can be no doubt that the claim of Levy for a part of the work done, before the first day of December, arises upon the contract which- he made with Sherwood, Ellis & Co., both as to the price to be paid him for the work, and the mode of payment. By that contract he was to be paid partly in money, and partly in the stock of the said railroad company.

Admitting that the defendants below are liable to Levy for the work performed upon those sections of the road embraced in the contract with Sherwood, Ellis & Co., they can only be liable to the extent, and be called upon to make payment only in the mode, fixed in the contract.

The defendants, therefore, became liable to pay Levy for his work partly in money, and partly in the stock above named. It was necessary, therefore, for the plaintiff to declare against the defendants specially for not paying the money, and not delivering the stock according to the contract. It was contended before us by the counsel for Levy, that the defendants became liable to pay Levy the money for all the work which he performed, by their failure to deliver the stock according to the contract, and that his demand, having become a demand for •money only, could be so declared upon.

it is true, that when a special contract has been wholly performed by one of the parties to it, and the other party can perform on his part only by the payment of money, the money thus due can be recovered upon the common counts for money in assumpsit. The reason is, that when the contract has been performed by the plaintiff, th'e obligation of the defendant to pay the money, arises upon the contract itself. But when the contract on the part of the defendant is not to pay money, but to deliver to the plaintiff specified articles of property, the right of the plaintiff to recover the money, arises, not from the performance of the contract on his part, but from the failure of the defendant to deliver the property. King et als. vs. Kerr, 4 Chandler R. 159.

In this case the right of Levy to recover the money for that part of the work which was to be paid for in the railroad stock, arises from the failure of the defendants to deliver the stock.

That portion of the charge of the judge to .the jury, in which he instructed them that they might find in favor of the plaintiff for work done on the sections of the road embraced in the contract of the plaintiff with Sherwood, Ellis & Co., on an implied assumpsit, if the proof warranted it, was therefore erroneous..

We must, therefore, reverse the judgment, and send the case oack to the circuit for a new trial.