
    Morton v. Kane.
    As a general rule, a party can not recover on a special contract which he has failed to fulfill on his part.
    But where the plaintiff’s agreement or stipulation constitutes only a part of the consideration of the defendant’s contract, and the defendant has actually received a partial benefit, and the breach on the part of the plaintiff may be compensated in damages, an action may be supported on the contract, without showing strict performance by the plaintiff.
    APPEAL from the Wayne Common Pleas.
   Wokden, J.

This was au action by Kane against Morton, upon an agreement by which Kane agreed to make and deliver to Morton 500,000 brick, 100,000 of which were to be ready for delivery by the first day of June, 1854: for which Morton was to pay 1,400 dollars. Averment that the plaintiff had performed the contract on his part; and that the defendant, though he had converted the brick to his own use, refused to pay for the same. Trial; verdict and judgment for the plaintiff.

The jury found that the brick had been made and delivered as provided for, except that the 100,000 were not ready for delivery by the first of June, 1854; they were, however, after-wards delivered, as well as the residue contended for. The point made is, that inasmuch as the 100,000 were not ready for delivery at the time specified, the plaintiff did not perform the contract on his part, and could not, therefore, maintain any action upon the contract. As a general rule, a party can not recover on a special contract which he has failed to fulfill on his part. Walcott v. Yeager, 11 Ind. 84; Cromwell v. Wilkisson, at the present term.

But there is another rule equally well settled, which runs by the side of, and in some measure qualifies, the general rule above stated. That rule is, that where the plaintiff’s agreement or stipulation constitutes only a part of the consideration of defendant’s contract, and the defendant has actually received a partial benefit, and the breach on the part of the plaintiff may be compensated in damages, an action may be supported on the contract without showing strict performance by the plaintiff Pickens v. Bozell, 11 Ind. 275, and cases there cited; Boyle v. Guysinger, 12 Ind. 273. In the latter case, the plaintiff was bound to pay money, by the terms of the contract, on the first day of August. He did not tender the money until the second day of that month. It was held notwithstanding, that he could maintain an action on the contract.

The case at bar seems to fall within the latter rule. Here the plaintiff’s agreement to have 100,000 of the bi’ick ready for delivery hy the first day of June, 1854, constitutes only a part of the consideration of the defendant’s agreement to pay, the 1,400 dollars. The failure to have the brick ready by the time specified, can he clearly, compensated in damages. The case of Campbell v. Jones, 6 Tenn. Eep. 570, is clearly in point here. The following extract from the opinion of Lord Kenyon will show the nature of the contract, and the ground of the decision: “ But another ground on which the plaintiff is entitled to judgment is this: that the teaching of the defendant is not the whole consideration of the covenant to pay. The agreement of the parties is, that in consideration of one entire sum of £500, the plaintiff should teach and instruct the defendant in the art of bleaching materials for making paper, and permit him, during /the period of his patent, to bleach such materials according to his specification; and though this sum is divided into two sums of £250 each, and is to be paid at different times, no part is denominated to be the consideration of using the patent, nor any part as the consideration of teaching, but one integral sum is adapted to the whole. Under this agreement, the defendant has a perfect title to use the patent, and the instruction of the defendant can not he taken to be the most material part of the consideration, as the specification must he supposed to contain full instruction for that purpose, though some advantage might arise from the assistance of the inventor. * * The distinction is clear, where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions; hut where the covenants go only to a part, and when a recompense may be had in damages, it is a different thing.”

Ashhurst, J. added: “Here the covenant to teach is hut a part of the consideration of the £500; for doing which the defendant may recover a recompense in damages. And the agreement of the plaintiff having been executed in part hy transferring to the defendant the right to exercise his patent, he ought not to keep that right without paying the remainder of the consideration, because he may' have sustained some-damages by the plaintiff’s not having instructed him.”

J. P. Kibbey and J. P. Siddall, for the appellant.

Q, W., J- B. ft J. F. Julian, for the appellee.

It may be observed, that if the defendant sustained any damage in consequence of the plaintiff’s failure to have the 100,000 bricks ready by the time specified, it was the legitimate subject of a counter-claim, and might have been thus set up. Pickens v. Bozell, supra.

Per Curiam.

The judgment below is affirmed, with costs, find % per cent, damages.  