
    Pomeroy vs. Underhill.
    Where services have been performed under an agreement that they should be paid for in goods; quere whether compensation can be recovered under the common counts.
    On a hearing before referees in an action for services performed under such an agreement, where the declaration' contained only the common counts, the defendant objected that the proof did not sustain the declaration, and that upon the testimony the plaintiff was not entitled to recover. Held, that the objection was too general to raise the question whether the plaintiff should not have declared specially upon the agreement.
    
    On error from the supreme court. Underhill brought an action of assumpsit against Pomeroy in the court below, and the cause was referred. The declaration contained the common counts for work, labor &c.; and the plaintiff claimed to recover for services in sawing lumber in the season of 1835. It appeared that the services were performed under an agreement that the plaintiff was to receive “ one half of his pay in goods out of the store of one Stephen Hyde, when the sawing was done, or while it was doing, and the other half in cash or neat stock, in the next fall after the making of the contract.” This agreement was made in the fall of 1834, and the suit was commenced in April, 1836. The witness who swore to the agreement was asked by the plaintiff’s counsel “ whether the manner in which the store pay was to be paid at Stephen Hyde’s store was mentioned in the agreement.” The counsel for the defendant objected to the question, and the referees sustained the objection. When the testimony on the part of the plaintiff was closed, the defendant’s counsel objected that “ the proof of the plaintiff did not sustain his declaration, and that upon the testimony introduced the plaintiff was not entitled to recover.” The referees decided that the plaintiff had shown enough to put the defendant on his defence. The defendant’s counsel then called Stephen Hyde as a witness, who testified that the plaintiff had not, to his knowledge, called at his store, at any time before the month of May, 1836, to get goods on account of sawing done for the defendant. Other testimony was given on the part of the defendant to establish a set-off", and to show that the sawing in question was unskilfully done. The cause was then summed Up and submitted to the referees, who made a report against the defendant, which he afterwards moved to set aside, but the supreme court denied the motion. He thereupon brought error to this court. For a report of the case in the supreme court, see 2 Hill, 603 et seq. It was argued here by
    
      M. T. Reynolds, for the plaintiff in error, and
    
      T. R. Strong fy S. Stevens, for the defendant in error.
    
      
      
         This indicates the ground on which the case was decided by the supreme court, and probably the one on which it was disposed of here. Senator Lott, however, it will be seen, though he coincided in opinion with the supreme court, took additional ground, and how far this may have influenced the result is uncertain.
    
   Senator Lott.,

without expressing any opinion as to whether the declaration should have been special, said the objection taken at the trial was not sufficient to enable the defendant below to raise that question. He adverted also to the fact that, when the witness who testified to the agreement was asked whether the manner in which the plaintiff was to be paid at the store was mentioned in it, the defendant objected, and thereupon the evidence was excluded. Having thus prevented the court from seeing what the agreement really was, he thought the defendant should not be allowed to avail' himself of it as a defence. Upon a view ot the whole case, therefore, he was of opinion that the judgment of the supreme court should be affirmed.

Senator Putnam was of opinion that the plaintiff should have declared specially upon the agreement, and that the common counts were not adapted to the case. But he did not consider the objection taken by the defendant below at the trial sufficiently specific to raise that question. |t was calculated to call the attention of the referees to the sufficiency of the evidence, irrespective of the pleadings, rather than to' the ground of variance. He thought the referees erred, however, in allowing the plaintiff to recover for that part of his claim payable in goods out of the store of Hyde, without proof of a demand made at the store. As to the other moiety of the plaintiff’s claim, payable in cash or neat stock, the decision of the referees was obviously right. No place for delivering the stock having been agreed upon between the parties, the defendant was bound to seek the plaintiff and offer to perform, and if he failed to do so, the latter might insist upon payment in cash. But the plaintiff has been permitted to recover for the whole of his claim, and on this ground the judgment of the supreme court ought to be reversed.

Senator Sherman also thought the judgment of the supreme court should be reversed for the reason stated by Senator Putnam, but differed from him in respect to the necessity of declaring specially, provided the price for sawing the lumber was fixed by the agreement, or capable of being ascertained by calculation. He conceded that the terms of the agreement, so far as it related to the price for the sawing, were left in doubt by the report of the referees ; but as the defendant below did not expressly object that the case was such as to require a special count, the court should intend against him.

Senator Wright was in favor of reversing the judgment of the supreme court, upon the ground that the services rendered Were to be paid for in goods &c., and not in money, and the plaintiff below should therefore have declared upon the special agreement. He considered the objection taken by the defendant a,t the trial sufficiently specific to apprise the referees and the adverse party of the ground intended to be taken, and this was all the law required.

On the question being put, “ Shall this judgment be reversed ?” the members of the court voted as follows :

For reversal: Senators Backus, Putnam, Sherman and Wright—4.

For affirmance: Senators Burnham, Corning, Denniston, Jones, Lott, Porter, Rhoades, Scott, Smith and Varían —10.

Judgment affirmed.  