
    Carma Parnell vs. Samuel Wilson.
    In a written contract between an overseer and his employer, it was stipulated, among other things, that the latter should furnish the former with fifty bushels of corn ; but as he had not the corn himself, the overseer was to obtain it wherever he could, and the employer was to pay him for it in the fall. The overseer having bought the corn, and the employer afterwards refusing to pay for it, it was held that the remedy of the former was confined to the written contract, and having brought his action for the price of the corn as on an account, he was nonsuited.
    In such case, there is nothing but the contract which imposes an obligation on the employer, to furnish corn to be consumed by his overseer ; and where the defendant’s liability depends wholly upon a contract, the action must be upon it.
    BEFORE EARLE, J., AT DARLINGTON, SPRING TERM, 1838.
    This was a summary process for fifty bushels of corn, in the usual form of an account — “ S. Wilson to C. Parnell, Dr.” &c. The case made by the evidence was, that the defendant had agreed with the plaintiff to put under his charge a plantation and some hands, for a year, for a stipulated compensation, and certain allowances besides. Among other things, the defendant was to furnish him fifty bushels of corn, but as he did not have it himself, the plaintiff was to obtain it where he could, and the defendant was to pay him for it in the ensuing fall. This agreement was in writing, signed by the parties. The plaintiff went upon the premises, procured, the corn at one dollar per bushel, and had it hauled to the place where it was to be consumed, in pursuance of the agreement, and this action was brought for the price of it. The several objections stated in the grounds of appeal were taken to the plaintiff’s recovery, on the circuit, and were overruled.
    The presiding Judge was of opinion that the plaintiff might recover without declaring upon the written contract, or any special agreement. The action was not for the general nonperformance of an executory contract. The defendant’s agreement to furnish the corn was separate and subordinate to the general purpose of the written agreement, and the plaintiff might either sue for so much corn sold and delivered, or for so much money paid, at the instance of the defendant. His receiving the benefit of the corn bound him to pay for it, without reference to the contract under which the plaintiff agreed to furnish it. Decree for the plaintiff.
    The defendant renewed his motion for a nonsuit in the Court of Appeals, on the following grounds:
    1st. That the defendant’s liability, if any, arose on a written agreement, which should have been declared upon.
    2d. That the plaintiff should have set forth in his process the special agreement, which he proved, and on which he recovered.
    3d. That the account set forth by plaintiff' in his process was, “ Samuel Wilson to Carma Parnell, Dr.,- to fifty bushels of corn at one dollar per bushel,” when the contract was, that the defendant was by a special agreement to pay for corn to be furnished to the plaintiff by some one else, and to be consumed by the 'plaintiff.
    4th. That there was no count in the process on which the plaintiff was entitled to recover, upon the proof made.
    If the motion for a nonsuit should be refused, the defendant gave notice that he would rely upon the same grounds on a motion for a new trial.
    Dargan, for the motion.
    
      Sims, for the plaintiff.
   Evans, J.,

delivered the opinion of the Court.

If an overseer furnish or buy and pay for corn, which goes to .the use of his employer, the price may be recovered as for corn delivered, or money paid, according to the facts of the case. But there is no principle upon which one man is liable for goods consumed by another, except it be by virtue of some contract or legal obligation to furnish the goods. The corn was consumed by Parnell, and there is nothing in the relation of the parties which imposes on Wilson an obligation to supply the corn to Parnell. The foundation of his liability is the special agreement, and where the defendant’s liability depends wholly on a contract, the action must be upon it. In this case the substance of the contract should have been set out, or a copy of it annexed to the process.

The decree is therefore set aside, and the motion for non-suit is granted.  