
    Goodrich versus Lafflin et al.
    
    A. agreed to deliver B. some step stones, which were to be paid for, one half in money, and one half in goods. The stones were delivered, and B. delivered some of the goods upon the special contract. B. having sued A. and recovered judgment for the value of the goods delivered, declaring upon the common counts only, it was held that A. might, upon the common counts only, recover the value of the stones.
    The plaintiff declared in assumpit on general counts for goods sold and delivered. At the trial, which was upon tne general issue, before Putnam J., the plaintiff proved, that in June 1816 he agreed to deliver to the defendants some step stones, to be paid for, one half in money, and one half in goods from the defendant’s store. The stones were delivered in the autumn of the same year. The defendants delivered some goods to the plaintiff upon the special contract, and in 1820 they brought an action for the value of the goods so delivered, declaring on the common counts, and recovered ludgment. The plaintiff afterwards brought the present action ; nd a verdict having been given in his favor, the defendants noved for a, new trial, on the ground that the evidence did not naintain either of the counts in the declaration.
    
      J. Mills, in support of the motion.
    The contract proved is lifferent from that on which the plaintiff has declared. This special contract has not been rescinded, and he ought to have declared on it specially. In Cook v. Munstone, 4 B. & P. 355, the rule is laid down, that “ where a party declares on a special contract, seeking to i acover thereon, but fails in his right so to do altogether, he may recover on a general count, if the case *3e such that, supposing there had been no special contract, he might still have recovered for money paid, or for work or labor done.” Robson v. Godfrey, 1 Stark. R. 277; Jennings v. Camp, 13 Johns. Rep. 97. But the plaintiff cannot recover on the general counts, where the goods were in fact sold under the special agreement, and where he might have recovered on a special count if he had framed it properly. Robertson v. Lynch, 18 Johns. Rep. 451. The case of Baylies v. Fettyplace, 7 Mass. Rep. 325, is directly in point There it was held, that evidence of a promise to deliver debentures will not support an action upon a promise to pay money. So, here, the declaration states a promise to pay in money, but the evidence shows a promise to pay partly in goods. The plaintiff ought to declare upon the special contract, where there is one, in order to prevent a surprise upon the defendant. Bac. Abr. Assumpsit, F.
    
    
      Bliss, for the plaintiff.
   Per Curiam.

Previous to the commencement of this action the defendants had sued the plaintiff, and recovered judgment, in an action of assumpsit for goods sold and delivered ; and the goods were a part of those to which the special contract referred. Both parties, therefore, have departed from the special contract.

The motion for a new trial is overruled, and judgment is to be entered according to the verdict. 
      
      
        Hill v Green, 4 Pick, 114.
     