
    Weed vs. Butterfield.
    Evidence that the plaintiff had made a contract with A. to cut on the land ol A. and draw and deliver to him a quantity of spars — that the plaintiff had on such contract cut and trimmed forty spars, which the defendant took and delivered to A. and received the money from A. for cutting and drawing the spars, will not support a declaration counting on a special promise by the defendant to deliver the plaintiff forty spars, nor a count for goods sold and delivered, as the spars taken were not the property of the plaintiff.
    THIS- was ail action of aésunipsit. The declaration contained a Count on a special promise by the defendant, to deliver to the plaintiff seventy-two spars, in consideration of seventy-two spars which the plaintiff had delivered to the defendant; and a count for goods, wares and merchandise' sold and delivered.
    
      Plea — The General Issue.
    
    Franklin,
    December, 1813
    It appeared in evidence, that the plaintiff had made a contract with Heman Alien, to cut on Allen’s land, and draw to a certain place for rafting, a quantity of spars. — That on this contract the plaintiff had cut and trimmed ready for drawing about forty spars. And that the defendant, who had made a similar contract with Al. len, took the spars which the plaintiff had cut and trimmed, delivered them to Allen on his contract, and received his pay for cutting and drawing them.
    
      Van Ness, for the defendant,
    contended that the evidence in the case did not support the first count, as it did not prove the special promise as. alleged ; nor the second count for goods sold and delivered, for it appeared that the plaintiff was not the owner of the sPars > — cou^ not be entitled therefore to recover the value of the spars, but only the value of the labour which he had bestowed on them.
   By the Court.

It is clear that the evidence does not support either count in the declaration. There ought to have been another count for work and labour,' or a count for money had and received, as the defendant had received money for the cutting of the spars? which belonged to the plaintiff.

The plaintiff suffered a nonsuit.  