
    SAMUEL INGRAM Adr’r vs. MARGARET ASHMORE.
    Whore 'a special contract is so far oxe'cutcd, that nothing remains to bo done between the parlies but the payment of 'the money, it may be recovered under the comifion counts in assumpsit,
    ERROR TO ST. LOUIS CIRCUIT COURT.
    ■statement op the case.
    This was áVí action of assumpsit brought by Samuel Jackson in the St. Louis circuit court against the defendant in error, Margaret Ashmore. Tho declaration contains a special count, and all the common counts with a count stated. The basis of the action is predicated upon the sale 4'nd transfer of a bond or noth transferred by the said Jackson to thesaid Ashmore, the property of the said Jackson, executed by one H. W. Carter and N. R. Sullivan, for the sum of one hundred Unci 'twenty-two dollars and thirty one cents, and is in the following words:
    “ Six months after date we, or either of us, promise to pay Samuel Jackson, or order, one hundred and twenty-two dollars and thirty one cents, with interest, at the rate of ten per cent, per annum from date until paid, without defalcation ot discount, for value received, as witness our hands and seals this 29th Sep’t. 1842.” tí. W. CARTER, [seal.]
    N. R. SULLIVAN, [seal.]
    The motive o'f thesaid Ashmore in buying said note, was as follows : She, thesaid Ashmore, had p'uichased of the said H. W. Carter and one Mildred Carter, his mother, five acres of land, and not having the money to pay them, purchased said note, so that it might be the same as cash to H. W. Garter, he being the maker of said note The said Ashmore then agreed with the said Jackson that if he would let her have said note for said purpose, she would in place of it execute her ownnote of hand with good security to him, said Jackson, on or before the Iasi day of April, 1844, for tbo said sum of $122 31 cents, drawing interest at tho rate of ten per cent, per annum from the said 29 th dáy bf September, 1842, until paid, as soon thereafter as requested by Jackson, or pay to the said 'Jackson by the last day of April, 1844, the aforesaid sum of $122 31 Bents, With ten per cent, interest per annum from said 29lh clay of September 1842. until paid. The said Jackson being desirous of accommodating the said Ashmore, lot her have said noto for said purpose, which note was 'taken and received by Said Carter ánd his mother as payment for said land. After which, the said Ashmore adopted tho latter part of the proposition of payment of Said note, and paid to said Jackson a part of said note, in pursuance of her said conlract, but failed and refused to pay the remainder of said note or bond. Tho said Jackson, some time after her refusal, commenced this action against her, and sued out an attachment tó secure him, and attached the land purchased as aforesaid. In tho declaration there is a special count lipón the special facts of the contract, and the bond sold as aforesaid is described as a note instead of a bond, which it is. To the declaration the said Ashmore, by her counsel, demurred to the special count, but afterwards withdrew the demurrer, and filed non-assumpsit. The trial coming on, Jackson, by his counsel, by the instruction of the court to the jury, was compelled to take a non-suit, with leave to move to sot it aside, and then excepted to the instructions given to the jury, and then moved the court to set aside the verdict and judgment given against him, based upon the said instructions given to tho jury, but the court refused to do so. Jackson died afterwards: his administrator, said Samuel Ingram, has brought this case here, to this honorable court, by writ of error. The instructions are based, as contended, by a variance in the special count, and the note or bond sold as aforesaid. The instructions read as follows:
    “ Where a special contract is in full force, not rescinded or waived by tho parties, no recovery can be had on the common counts.
    
      If the jury believe from the evidence that the contract proved is different fr.orn the contract declared on by the plaintiff, they will find for tile defendant.
    The plaintiff avers in the declaration that there was a promissory note sold and transferred to the defendant, made by H. W. Carter, with Sullivan as security, to bo used by the defendant to pay for land which she had bought of H. W. Carter and his mother,. Now* if. the jury believe from the evidence, that there was not a note sold and transferred as averred, bgt a bond, executed hy H. W. Carter, and N. R. Sullivan ; or if :he jury believe from the,evidence that the bond was to be used by the defendant to pay for land purchased from Zeigler, they will find for, the defendant.”
    J. B. King for plaintiff in error.
    The circuit court erred 5u giving these instructions to the jury, tihpy. confino the consideration and verdict of the jury to the special count in the declaration alone, when tile plaintiff Jackson had a full right to recover under the count stated. Stoliings vs. Sappington 8 vol., Missouri Rep. page 118.
    Ashmore’s agreement is, that she will execute the note or pay the money, and actually pay a part of it, a sum acknowledged to bo due, certainly authorized Jackson to recover judgment against her for the remainder, upon the count stated. See 9th vol. Mo. Rep. page. 538, ease of Rutledge and Farar vs Moore.
    A special count was not necessary to entitle Jackson to recover jn this case.
    The court erred in not granting a new trial in this case, by setting aside the non-suit for the reason stated and set forth when moved so to do.
   Judge Ryland

delivered the opinion of the court.

From the statement of the facts, above set forth, and which is corroborated by what appears on the record, in, this case,„as the evidence given on the trial, I am satisfied that the court below erred, in the instructions which it gave to tbe jury.

The contract was entirely executed on the part of the plaintiff, he had delivered the bond or note, and (it is immaterial which it was) to the defendant, it was accepted by her, it was used by her in the payment of her debt, and nothing remained to be done between the parties but the payment of the money hy defendant to,the plaintiff, in accordance with her promise and undertaking.

The common counts were sufficient under this state of facts : and the plaintiff ought to have been permitted to recover tbe balance due to him from the defendant, on these counts.

Because the court refused to set aside the non-suit, therefore, which the defendant had been compelled to take by the improper instructions of the court, its judgment is reversed—and the- cause remanded for further proceedings in accordance with this opinion.,  