
    James M. Morrison vs. Thomas B. Ives, use of James Jones and Thomas H. Jones.
    If the declaration contains one special and several common counts, so long as the special contract remains in force, the plaintiff cannot resort to the common counts, unless he fails altogether in proving the special contract, and then it must be such a transaction as would entitle him to recover on the money counts, supposing there had been no special contract j but if there be any proof of the special contract, he cannot recover.
    Wherever the contract is special, and the payment of the money and the delivery of the thing are concurrent acts, it is incumbent on the plaintiff, to entitle himself to damages for a breach of the contract, to aver in the declaration and prove an offer to perform his part of the contract.
    But if the contract has been rescinded by mutual consent, or abandoned by the defendant, an action may be maintained for money paid on the contract ; yet the abandonment must precede the action, for if the contract is in force, it cannot be abandoned at the trial.
    Error, from the circuit court of Yalabusha county.
    This action was an action of assumpsit, instituted to the September term, 1839, of Yalabusha circuit court. The declaration contained a special count, founded on a receipt, in the words following, to wit: —
    “ Received of Thomas B. Ives, by the hands of H. McRee, five hundred dollars, in addition to four hundred dollars, on my cotton, to be delivered at Sardinia, at ten cents per pound, he taking my whole crop, and paying the balance so soon as delivered. (Signed) James H. Morrison.
    
      December 26, 1837.”
    — and the several common money counts. At the return term, the defendant demurred to the first count in the declaration, on the ground that it contained no averment of a readiness or offer to pay for the cotton. The court sustained the demurrer, and granted leave to amend the declaration. At the May term, 1841, the case was tried, and a verdict rendered in favor of the plaintiff, and a new trial granted. At the May term, 1842, there was a mistrial. At the November term, 1842, 'the cause came on for trial, when the plaintiff read the above receipt to the jury, and closed his case. Whereupon the defendant demurred to the evidence, and the court took the case under advisement until the next term, and at the next term sustained the demurrer, and, on motion, ordered a new trial. At the November term, 1843, the case was again tried, and a verdict rendered in favor of the plaintiff, for. thirteen hundred and twenty-three dollars, and judgment entered accordingly. The defendant then moved for a new trial, his motion was overruled by the court, and he excepted.
    The bill of exceptions shows, that at the trial the plaintiff read to the jury the above-mentioned receipt, and then proved, by Hiram McRee, that he, as the agent of the plaintiff, advanced the five hundred dollars mentioned in said receipt; that the defendant notified him that he had delivered the cotton, and demanded the balance of the money, but he had not the money to pay. On cross-examination he stated that he was acting as Ives’s agent at that time, in his cotton business, and that at no time during the season was Ives-, so far as he knew, ready or able to pay the balance due.
    The plaintiff then called Robert Patterson, and proved by him that Morrison had, in the latter part of December, 1837, or in January, 1838, hauled sixty-three bales of cotton to the port, or landing, at Sardinia, which is about a quarter or half mile from the town, and the usual depot and shipping point, though sometimes it was left up in town. It was commonly left in town when it had to be weighed. Witness heard one Barfield offer to pay the money for the cotton, and take Ives’s contract, but Morrison said no one should have it but Ives; that he did not care whether Ives took it or not. Witness being asked, on cross-examination, whether Barfield had any money, said he thought it likely he had some. ‘
    McEwing, King, & Co., of Holly Springs, stated that the cotton lay at the landing, until some time in March ; that the bales of cotton averaged about four hundred and fifty pounds; that there were sheds in town and sheds at the landing; that said cotton never was delivered in the town, but was left at the landing above stated.
    Mr. Ragsdale proved that he had sold Morrison sixteen bales Of cotton ; that he had had a conversation with Ives about the matter, and that Ives stated the only reason he did not take the cotton from Morrison was, that he could not get the money to pay for it; that the sixteen bales went in as part of Morrison’s crop, delivered at Sardinia.
    Elisha Moore proved that he had a conversation with the defendant, who stated that he had received nine hundred dollars from Ives, in part payment of his crop of cotton, and that he did not care whether Ives complied with his contract or not, as he could do as well, if not better, by shipping it; that he, witness, had in that conversation informed the defendant, that he had sold his cotton for twelve and a half cents per pound. Here the plaintiff rested his case.
    The defendant then offered to read a note, filed with his plea of payment, but it was ruled out by the court, because the defendant could not prove that it was in his possession before he received notice of the suit.
    The defendant then read a bill of discovery, charging, among other things, that he had lost six hundred and seventy-three dollars and thirty-three cents, by the plaintiff’s failure to comply with his contract. And the plaintiff answers, and says he knows nothing about this charge, and denies every other material charge in the bill.
    This being all the evidence, the plaintiff" moved the court to instruct the jury, “ that the plaintiff was at liberty to abandon his special contract in the declaration set out, and recover on the common counts,” which the court gave, and the defendant excepted.
    When the defendant moved for a new trial, he read an affidavit, which stated that he supposed the case had gone off the docket, on the demurrer to the evidence, and he was, therefore, taken wholly by surprise at the trial. That he could establish his offset by A. H. Morgan, from whom he obtained it, before the institution of suit, and that h» James M. Morrison, was a material witness for him, to prove the extra pains he had taken to deliver the cotton, at the time and place specified in the contract, and Ives’s refusal to comply.
    
      A. C. Baine, for plaintiff in error.
    It is a little remarkable that the plaintiff should here seek to recover on a contract that he never has performed; not only has not performed, but has never attempted to perform. And not only so, but proves his own falsehood when he avers that he was ready and offered to perform his part of the agreement; and, to avoid this, he procured the instructions which are manifestly erroneous. This was throwing it back precisely upon the point it rested when the demurrer to the testimony was sustained. And it is a matter of no small difficulty to imagine, even, how the judgment was given upon that demurrer and those instructions by the same court. The law on this subject is so well settled, and by such numerous authorities, that it is not only strange why a court should mistake it, but equally so that any well-informed counsel should advise a suit to be brought that could not be sustained, any better by testimony than this case has been.
    In Porter v. Rose, 12 Johnson’s Reports, 209 -211, the law is laid down in these words, to wit: “ It is fully settled in a variety of modern cases, which have disregarded the artificial and subtle distinctions of former times, and looked to the real intention and meaning of the parties, that where two acts are to be done at the same time, as when one agrees to sell and deliver, and the other agrees to receive and pay, an averment by the purchaser, in case he sues for non-delivery, is indispensably necessary; and that, consequently, the readiness and willingness to pay is matter to be proved on his part, whether the other party was at the place ready tó deliver the thing contracted for or not.” Citing Morton v. Lamb, 7 Term R. 125 ; 1 East, 203 ; Rawson §' Minns v. Johnson, 2 Bos. & Pul. 447; Waterhouse v. Skinner, 1 Saund. 320, note 4; Westv. Emmons, 5 Johns. R. 179; Green v. Reynolds, 2 Ibid. 207. To which I will add, as to the nature of conditions generally, the following: 20 Johns. 15; 17 Ibid. 293; 10 Ibid. 203; Ibid. 266; 16 Ibid. 267; 8 Cow. 63; 2 Mass. 147. This law fully determines the rights of the parties, and at the same time very clearly establishes the error of the judge in giving the instructions asked for by the plaintiff.
    The case of Ketcham v. Evertson, 13 Johns. 365, expressly cited and recognized in 9 Co wen, 46, is equally clear on this point of the case. The court there say, “ It may be asserted with confidence, that a party who has advanced money, or done an act in part performance of an agreement, and then stops short, and refuses to proceed and fulfil his stipulations according to the agreement, has never been suffered to recover for what has been advanced or done.”.....
    “ It would be an alarming doctrine, to hold that the plaintiffs might violate the contract, and, because they choose to do so, make their own infraction of the agreement the basis of an action for money had and received.” “ Every man who makes a bad bargain, and has advanced money upon it, would have the same right to recover it back that the plantiffs have.” Authorities cannot, nor can reason make the case clearer. But, besides, this instruction was a mere ábstrict principle of law; and I need not cite authority to show this erroneous. As to ruling out the note, the case of Glass v. Moss, l How. R. 19, is very clear for us. Because, if a note may be transferred by delivery, the possession of it, upon a delivery, is as high evidence of title as a blank indorsement; and a blank indorsement always imports that it was made and has relation to the date of the instrument, unless the contrary be averred and proved. 7 Paige, 615 — 629, is an express authority for this position.
    
    That the court ought to have given the defendant a judgment, and not ordered a new trial on the demurrer to the evidence, we think to be the law; for the reason that the whole law of the case, upon the facts, is submitted to the court. And if a plaintiff will resign his case upon no evidence, or upon insufficient evidence, he can crave no relief upon a judgment against him by the court, any more than if a jury had given an absolute verdict against him. And it is very clear law that if he run the risk of a trial before the jury without sufficient testimony, or any ■other proper preparation, instead of asking a continuance until he could procure it, that then the court would not grant a new trial. But this verdict is clearly excessive. What are the facts upon which a verdict should be based, supposing the plaintiff entitled to a recovery?
    
      First, that Ives paid $900; secondly, that Morrison actually lost $673 33, because he failed to comply with his contract The difference, then, between $900 and $673 33, (to wit, $226 67,) instead of this verdict of upwards of $1300, is the proper amount of damages due, if he be entitled to anything.
    
      William, Yerger, for defendant in error.
    The facts of this case are as follows: Ives sued Morrison upon a receipt, signed by Morrison, acknowledging the advance of $900 by Ives to him, on account of his cotton crop, all of which Morrison agreed to deliver to Ives, and Ives agreed to pay Morrison for, at the rate of ten cents per pound. A special count on the receipt, and several common counts, for money loaned, &c., were filed. On the first trial a verdict was found for Ives, and a new trial awarded. On the second trial the jury could not agree. On the third trial the defendant demurred to the plaintiff’s evidence. The demurrer was sustained, and a new trial awarded. On the fourth trial the jury found a verdict for Ives. A motion was made for a new trial, which was overruled, a bill of exceptions taken, and a writ of error sued out. On the trial Ives read the receipt for the money, and proved, by several witnesses, that the defendant had shipped his cotton to New Orleans, sold it, and used the proceeds; and stated to several persons, before shipping, that he did not care whether Ives took it or not, as he could do better with it by shipping. He proved that the defendant hauled his cotton to Satartia, where it remained some time, and that the defendant then shipped it to New Orleans. The defendant filed a bill of discovery, alleging, among other things, that he had lost by shipping his cotton; and that he had tendered his cotton to Ivesa who was unable to pay for it. Ives answered, denying that he had ever been informed that the cotton was at Satartia, and answered that he did not know whether defendant had lost by shipping his cotton or not. An affidavit was also made, setting out a surprise as a ground for a new trial. This affidavit it is not necessary to notice, as the surprise stated would only have been ground for a continuance under any circumstances.
    It is urged that the court erred in granting a new trial on sustaining the demurred to the evidence. As there was no objection taken to the granting of this new trial, and no bill of exceptions taken, this court is bound to presume that the circuit court had ample reasons for granting the new trial. 1 How. 162.
    The right of the plaintiff below to recover on the proof made on the last trial, is clear. Ives made a contract to take the defendant’s cotton, at a certain price, and paid part of the purchase-money in advance. Being unable to carry out the contract, the defendant treated it as rescinded, and sold his cotton. This is the worst light in which it can be viewed for Ives. Now it is manifest, that unless the respondent sustained a loss equal to the advance made by Ives, that Ives is entitled to be repaid his money. The rule of law is well settled, that where a contract is rescinded by mutual consent of parties, the common count lies to recover the money paid by the plaintiff under the agreement. Chitty on Contracts, 621; 12 Johns. R. 274; 5 lb. 85; 19 Serg. & Rawle, 227; Chitty on Contracts, 466; 2 M. & P. 262.
   Mr. Chief Justice Sharkey

delivered the opinion of the court-

The declaration contains a special count, and also the money counts, the instrument sued on being in the following words: “ Received of Thomas B. Ives, by the hands of H. McRee, five hundred dollars, in addition to four hundred, making nine hundred dollars, on my cotton, to be delivered at Sardinia, at ten cents per lb. he taking my whole crop, and paying the balance so soon as delivered. December 26, 1837. Jas. M. Morrison.” The plaintiff proved by McRee, who was Ives’s agent for the purchase of cotton, the payment of the money. The witness stated that Morrison notified him of the delivery of the cotton, and demanded the money, and that Ives had not the money at any time during the season, and of course had not been prepared to pay. Another witness stated that in December, 1837, or January, 1838, Morrison hauled sixty-three bales of cotton to the port or landing, which was half a mile or more from Sardinia, but which was the usual place for delivering cotton, being the place at which it was shipped. One Barfield offered to pay the money for the cotton, and to take Ives’s contract, but Morrison refused, saying that no one but Ives should have it. The cotton remained at the landing until March. Ives states to another witness that his only reason for not taking the cotton, was that he had not the money. Morrison stated to another witness that he did not care whether Ives took the cotton or not, as he could do as well, or better, by shipping it. Morrison afterwards shipped the cotton to New Orleans, and failed to realize as much for it as Ives had agreed to give. The defendant filed a bill of discovery, but the material allegations being denied, it furnishes no additional evidence which could materially vary the aspect of the case.

On this state of facts the court instructed the jury that the plaintiff was at liberty to abandon the special contract set out in the declaration, and might recover on the common counts; whereupon the jury found a verdict for the plaintiff for $1323, and the defendant moved for a new trial, and now assigns for error that the court erred in the instruction, and that the motion for a new trial was improperly overruled.

So long as a special contract exists in force, a plaintiff cannot resort to the common counts, unless he fail altogether in proving the special contract, and then it must be such a transaction as would entitle him to recover on the money counts, supposing there had been no special contract, but if there be any proof of a special contract he cannot recover. 4 Phil. Ev. 108, Am. ed. 1839.

Wherever the contract is special, and the payment of the money and delivery of the thing are concurrent acts, as they were in this case, it is incumbent on the plaintiff, to entitle himself to damages for a breach of the contract, to aver in the declaration, and prove an offer to perform his part of the contract. Porter v. Rose, 12 Johns. R. 209; Morton v. Lamb, 7 Term R. 125.

But these rules are based upon the supposition that the contract still continues in force, and do not apply if the contract has been rescinded by mutual consent, or abandoned by the defendant, and the action be brought, not for damages, but for money paid on the contract. It is not easy to distinguish this case from the case of Raymond v. Bearnard, 12 Johns. R. 274. Morrison, it seems, treated the contract as at an end, by selling the cotton a short time after it was to have been delivered. His expression that he did not care whether Ives took the cotton or not, when taken in connection with the subsequent sale of the cotton, certainly goes very far to establish an abandonment of the contract. It is, moreover, doubtful whether the delivery at the landing was a delivery within the meaning of the contract. But these were questions of fact, and do not seem to have been raised on the trial below. Ives, too, may have abandoned the contract before any act of abandonment on the part of Morrison, and in such case he forfeited his right to recover the money paid. The charge seems to have been given without reference to either of these questions. If the court had added to the charge that Ives was entitled to recover if Morrison had put an end to the contract, then it would have been well enough. But the charge is in general terms, that he had a right to abandon the special contract, and recover on the money counts. The abandonment must precede the action, for if the contract be in force, it cannot be abandoned at the trial. The charge was calculated to mislead the jury, and it may have had that effect.

Judgment reversed, and cause remanded.  