
    
      W. L. Morse vs. W. C. Ellerbe.
    
    Where there was an agreement in writing for work and labor, &c., to be done by plaintiff for defendant, to be paid for in instalments after the work was finished, and before the work was begun, by verbal agreement a further sum was added to the price, to be paid one year after the last instalment, alterations in the work, made during its progress, by the instructions of defendant, were held to be a sufficient consideration to support a promise to pay the whole price when the work waa finished.
    In such case, the plaintiff might recover either upon a special count, setting forth the original contract and the subsequent alterations, or upon the common counts for work and labor, &c.
    Until explained or rebutted, the legal presumption from giving a note is, that all precedent indebtedness of the maker is covered by it.
    Where plaintiff’s demand does not bear interest, and defendant pleads a note as discount, the jury cannot stop interest on the note at the time plaintiff’s demand became due, but must give interest up to the time the verdict is rendered.
    
      Before Evans, X, at Chesterfield, Spring Term, 1851.
    
    This was an action of assumpsit on a contract for building a house. There were several counts in the declaration. The first count, after reciting an agreement between the parties, whereby the defendant was to pay one thousand dollars, when the work was finished and accepted, one thousand dollars at the expiration, of one year, and five hundred dollars at the expiration of two years afterwards, alleged that this agreement was, by mutual consent, waived, and defendant promised to pay the whole of the stipulated price, reducing the two last instalments to the cash value, immediately upon the work being finished. The third count was upon a promise to pay, upon the delivery and acceptance of the work, twenty-five hundred dollars, in manner following, that is to say, one thousand dollars, and one other thousand dollars, less the interest thereon for one year, and five hundred dollars, less the interest thereon for two years. Then followed the common counts for work and labor, materials found, «fee.
    It appeared that, on the 6th September, 1847, the plaintiff agreed, in writing, to build for defendant — he, plaintiff, finding the materials — a dwelling house, and to finish the same by the 1st of June, 1848 ; and, by the same instrument, defendant agreed to pay plaintiff f2000, one half when the work was completed, and the other half twelve months after. In November, before the work was begun, plaintiff told defendant he could not build the house for $2000, whereupon defendant agreed to add $500 to the price, to be paid one year after the last instalment. During the progress of the work, by the directions of the defendant, several alterations were made in the original contract, the house was plastered instead of being ceiled, blinds were put up as shutters to the windows instead of panel shutters, and some change was made in the number of partitions up stairs. During the summer of 1848, defendant said if the house was finished by the last of the year, he would be satisfied. It was finished about the 1st of January, 1849, and possession taken of it soon after, by a brother of defendant. The conduct of the parties, and declarations of the plaintiff, were relied on to shew that, during the progress of the work, defendant had promised to pay plaintiff the whole price of the building, $2500, upon the completion thereof, deducting interest upon the two last instal-ments. The action was commenced soon after the work was finished.
    In his defence, the defendant insisted that but one instalment was due when the action was commenced; that defendant’s promise, if any was proved, to pay the whole price upon the completion of the building, was without consideration. But the grounds of defence principally relied upon, were various items of discount. Some of the items were for corn, beef, &c.; one item was for two promissory notes, one due the 1st June, 1848, and the other, for $146 50, dated the 20th December, 1848, and due at one day; and another was for the price of three little negroes, sold in 1848 by defendant to plaintiff. In relation to this last item of discount, the plaintiff contended that it was settled by the note of the 20th December, 1848, and upon that part of the case his Honor reported the facts proved, and his instructions to the jury, as follows :
    “ It was clearly proved, that in the year 1848, Morse agreed to buy three little negroes from Ellerbe, at the price of $550. One of them was sick, and soon afterwards died. Two were received by Morse, and ,re-sold to'Zachariah Ellerbe for the same price, $450; the other, it was contended, had never been delivered, and was, therefore, Ellerbe’s loss. There was no proof, that I remember, that the negroes were to go in payment of the house. On the day Zachariah Ellerbe paid for the negroes, and afterwards, there was a settlement between Morse and Ellerbe, the defendant, at Zachariah Ellerbe’s, and a note given for $146 50. What this note was given for, did not appear. In stating to the jury this part of the case, I brought to their view all the evidence on the point. I do not believe any fact was omitted ; I did not, I presume, draw any inference from other facts on either side ; I told the jury to charge Morse with the price of two, $450, and with the other if they believed it had been delivered, unless they should be of opinion the negroes had been paid, for and included in the settlement. I was inclined myself to think this item of the disco,unt was not included in the settlement — this, I think, was very clearly intimated to the jury.”
    On the question whether the plaintiff could recover; his Honor reported his charge, on the points made, as follows :
    “1. As to the price to be paid, that Morse was bound by his original contract to build the. house for. $2,000 ; but if, before the work was begun, he declined to go on with the contract, and Ellerbe then promised, as an inducement to him to proceed, to give him 500 dollars in addition, that -was a binding contract, and founded on a sufficient consideration.
    
      “ 2. As to the time of payment. By the original agreement, only $>1000 was to he paid when the house was finished, and the action was brought before any more was due. Unless, therefore, there had been a change in the time, on a sufficient consideration, the plaintiff could not recover, as he had been paid more than was due, and they should find a verdict for the defendant for what he had paid over $>1000.
    
      “ 3. If one bound to pay a sum by contract at a particular time, gratuitously and without consideration, promise to pay it at an earlier period, such promise is not binding; it is nudum fac-tum. The consideration which the law requires to support a promise, is any benefit to one party, or detriment to the other. On this point there was no evidence; but it was clear the contract had been changed in many particulars. Ellerbe was claiming, by his discount, about $600, for work omitted, as the witnesses said, at his request. If the jury, taking all these facts into consideration, could believe that the time of payment had been changed by agreement, in consequence of these alterations, then there was a sufficient consideration. But unless they could come to this conclusion, then Ellerbe’s promise to pay on the 1st January, the whole price, was not binding, and the verdict must be for the defendant.
    “ I was much inclined to the opinion that the original contract had been altered in so many particulars that it might well be considered as abrogated, except as matter of reference, to determine the work to be done. This was what was contended for by the plaintiff; but the case was decided on the original contract, as altered by the subsequent parol agreements.”
    The jury found for the plaintiff, and brought in with their verdict a memorandum, which shewed that they did not allow defendant for the price of the negroes, and that they allowed him interest on the two notes only to the 1st January, 1849.
    
      The defendant appealed, and now moved for a new trial, on grounds, inter alia, as follows :
    1. Because, as the only binding promise proved, was one to pay by instalments, only one of which was due when the action was commenced, the plaintiff could not recover at all on the common counts, and, on the special count, could recover only the instalment due.
    2. Because there was no proof of a promise founded on consideration to pay the whole price when the house was finished.
    3. Because his Honor erred in instructing the jury that, upon the proof, they might presume that the price of the negroes was settled when the note of the 20th December, 1848, was given.
    4. Because the jury should have allowed interest on the notes to the time the verdict was rendered.
    
      Inglis, for the motion.
    
      Hanna, contra.
   Curia, per

O’Neall, J.

The four first grounds are those which will be considered in this opinion. The others are considered as sufficiently answered by the report, or resolved by the verdict.

The first and second grounds are so intimately connected, that they must be considered together. Indeed, the matter of the second precedes the just consideration of the first. The original contract was, that the work to be done should be paid for in instalments. It is true that a contract, like this, can only be changed by a subsequent contract on a sufficient consideration. What that is, is very well settled to be any benefit to the party making, or injury to the party accepting the promise. In this case, $500 was added to the price to induce the plaintiff to go on with that which he had found to be an unprofitable contract. In the progress of the work various alterations were made by the defendant. These were certainly both a benefit to him, and an injury to the plaintiff, and may, therefore, very well support the promise to pay the whole price, $2500, deducting the interest on the instalments not due when the work was completed. The jury were properly instructed, both as to the consideration and the promise, and having found on evidence which may well support their conclusion, we are bound to regard both the consideration and promise as established. Under this view of the case, there can certainly be no doubt that the plaintiff has established his first and third special counts. If, however, they were out of the question, still he is entitled to recover on the general indebitatus count for work, labor and materials. Chitty states the rule to be that, “ if preceded by the defendant’s request, then, however special the agreement was, yet if it were not under seal, and the terms of it have been performed on the plaintiff’s part, and the remuneration was to be in money, it is not necessary to declare specially, and the common indebitatus count is sufficient.” (1 Chit. PL 348.) The case of Merrill & Alderman vs. The Ithaca & Owego Rail Road Comp., (16 Wend. 586,) is an illustration of the rule. There, notwithstanding very special written contracts, yet inasmuch as the work was allowed to go forward after the day limited for its completion, it was held, after its completion, that the plaintiffs could recover on the common counts, referring to the special agreement for the guide of the recovery, wherever it could be traced and made to apply. In this case, the work was allowed to go forward after the time limited by the special contract, various alterations were made, and the work was completed, and the payment was to be in money. There is, therefore, an end to every possible objection.

On the third ground, it ought to be observed, that the defendant had no right whatever to complain of the charge of the Judge below. It certainly was very much in his favor, and hardly gave sufficient weight to the presumption that the price of the negroes had been settled, arising out of the fact of giving the note. For he left it to them as a mere matter to be judged from the evidence in this particular. Taken even in that point of view, the jury had enough to induce them to conclude that the price of the slaves was settled. There was no evidence that their price was to be in part payment of the work of the plaintiff. The two surviving were sold to the father of the defendant, in his presence, and the money paid ; he and the plaintiff retired to themselves to make some settlement, and the note of $146 50, dated 20th December, 1848, was given. It might be fairly concluded, from these facts, that the money received from Zachariah Ellerbe, in whole, or in part, was paid to the defendant, and the note given for the balance. But beyond all doubt, until explained or rebutted, the legal presumption from giving a note is, that all precedent indebtedness of the maker is covered by it. Cowen & Hill, in their notes to Philip’s Evidence, (2 vol. 315, note 306,) say that “ giving a promissory note, after the time of credit, for goods purchased by the maker of the payee, leads to a presumption that the price of the goods was included in the note.” This is enough for the matter involved in this ground:

The fourth ground is well taken, and there can be no doubt that the jury did wrong in stopping the interest on the plaintiff’s notes, set up by way of discount by the defendant at the time the plaintiff’s work was done, and when he ought to have been paid. For his, the plaintiff’s, demand rested on a mere verbal undertaking, and could not bear interest. . The case of Russell ads. Rogers (1 N. & McC. 24,) decides the very point. For there, it was held, that interest-on a promissory note could not be stopped. by accounts offered in discount, being credited successively as when due. The same rule must hold when a note is offered in discount of a demand not bearing interest; for a discount is in the nature of a cross action. Looked at in that way, there is no difficulty — the defendant is entitled to recover his notes and interest to the trial; this sum must be discounted from the amount of the plaintiff’s demand. From the calculation made by the plaintiff’s attorney, in his argument here, it appears that the interest on the plaintiff’s notes, if calculated to the trial, would have exceeded the amount allowed by the jury in that behalf $45 67. This sum must be allowed to the defendant. It is, therefore, ordered that the motion for new trial be granted, •unless the plaintiff shall, within thirty days after notice of this order, remit on the record forty-five dollars and sixty-seven cents of his recovery; on that being done, the motion is dismissed.

Evans, Feost, Withees and Whitnee, JJ., concurred.

Motion granted, nisi.  