
    Raymond and others against Bearnard.
    Where aspeeiai agreement mhsists hi foil pSiiff^cannot recover under the money counts.
    But the agreement u$s eeen rescmded i>y ti-e defendant, the plainiiffmay, under neyüa^ &c! mmeyjaWby couuirfibea-
    part of the parchase motssy of goods which tile IS.^and* tale taín time, was l°,i ft Bofcfii"within the time, but the^expiratiou éd the goods, üiemf <1feIver titled're-mosey
    
    mom! of the money, before bringing^ the accessory.
    tjnderof it es* ri|ht,ISbut will aBc{aim*of terett.
    IN ERROR, on a bill of exceptions, to the court of common , - „ ■ pleas of Orange County.
    
    
      Bearnard, the plaintiff below, brought an action of assumpaSainst Raymond and others, the defendants below, who were in trade, carrying on business under the firm of Raymond Sr Barney, for the non-delivery of twelve barrels of «• ’ J m . whiskey, sold by them to Beárnard. The declaration contained. ^ three Counts.
    The first count stated, that on the Tth of September, 1813, the. plaintiff at the special instance and request of the defendants, bargained with the defendants for, and the defendants sold to the plaintiff, a large quantity,'to wit, twelve barrels of whiskey, at the rate of twenty-two dollars a barrel, to be delivered to the • J 7 plaintiff at the store of the defendants, within a reasonable time. . . , , and the residue of the money that might be due therefor, to be paid on the delivery of the whiskey; and that in consideration thereof, and that the plaintiff at the like special instance and request, had paid to them one hundred dollars, part °^- consideration money, and had promised to receive the whiskey, and pay the residue of the money due for the same, they, the defendants, undertook to deliver the same:. and that although the plaintiff within a reasonable time to wit, within the time of ten weeks thereafter, at the store of the defendants, did demand the delivery of the whiskey, and was then and there ready and willing to pay the of the money, and offered so to do, and hath always ready to receive and pay for the same; yet, that the defendants, not regarding, &c.
    liie second count stated the sale of the whiskey, as' in the first count, to be delivered when the plaintiff could coijveniently procure teams for the transportation thereof, which the plaintiff stated to be, when the farmers would be done ploughingt though the plaintiff when the farmers were done ploughing, as soon as he could conveniently procure teams for the transportation of the whiskey, to wit, on the tenth day of November, in the year aforesaid, at the store of the defend- . .1-1 .1 J o J ants, did demand, &c. ■
    The third count was for money had and received.
    The defendants pleaded the general issue : and it xvas proved by two witnesses for the plaintiff, at the trial, that at the time the whiskey was sold, to wit, the 7th of September, it was agreed that the plaintiff should call for it, at the store of the defendants, within one month; but that the plaintiff as was stated by one of the witnesses, objecting to the titiie, the defendants consented to. enlarge it to five or six days, to which the plaintiff said that he "would take it away if he could; and that the plaintiff then advanced one hundred dollars in part payment; the other witness "stated, that the agreement was to pay the residue of the money, and take away the whiskey, within one month, or thereabouts. It was further proved, that about three months thereafter, as one witness said, or on the 10th of November, as the other stated, the plaintiff came to the store of the defendants, and demanded the delivery of the whiskey, and tendered the residue of the purchase money ; but that the defendants refused to deliver it, alleging that the plaintiff had violated his contract by not calling in time, and that they had sold the whiskey, and thereupon tendered, and offered to pay, the plaintiff the sum of one hundred dollars.
    Upon this evidence, the counsel for the defendants contended, that the plaintiff was entitled to recover, neither on the special counts, nor on the count for money had and received ; but the court charged the jury, that, although the contract was not proved as laid, yet the plaintiff was entitled to recover the one hundred dollars, under the money count; and the jury found a verdict accordingly.
    A bill of exceptions was tendered by the defendants’ counsel,, to the opinion of the court below, which was now submitted to this court without argument.
   Per Curiam.

This case comes before the éonrt on a writ of error, to the common pleas of Orange County ; and the errors complained of arise out of a bill of exceptions tendered at the. trial. The declaration contains several counts on a special contract, and also the common money counts. Upon the trial, the plaintiff below failed, in the opinion of the court, in supporting the special contract, but they allowed him to recover back the money advanced at the time the contract was made. The ground upon which tile plaintiff failed |n recovering on thp special contract, was, that he did not call for the delivery of the whiskey within the time limited by the contract; and when he did calí, and demand tile same, the defendants refused to deliver it, because the demand was not made in season. Thus, the defendants, by their own act, defeated a performance of the contract- There’is, therefore, no special agreement subsisting between the parties ; but the same has been put an end to by the election of the defendants. ' If the special agreement was in force, the plaintiff could not resort to the general counts. But the defendants themselves refusing to carry into effect the ¡contract, they ought not to be permitted to. set it up as the preiext for holding the money advancfed. If the contract is rescirided in part, it must be iñ toto ; and the plaintiff’s right to recover back the money paid, is undeniable, (1 Term Rep. 133. 1 Bos. & Pull. N. S. 354. 5 Johns. Rep. 87. 7 Johns. Rep. 132.) No demand, pf the money was necessary, before bringing thé action; nor did the tender set up extinguish the demand; the only effect of such tender is- to preclude any claim for interest. . The judgment of the court below must accordingly bp affirmed. , ,

Judgment affirmed.  