
    Watkins vs. Hodges and Lansdale.
    Appeal from Baltimore county court, Assumpsit by the, appellant agajnst the appellees. The declaration contain-?, ed four counts: The first for goods sold and delivered. The second on a quantum meruit for; goods sold and delivered. The thirfl on an insimut computassenti and the fourth qnff special" agreement. The last count is as follows, viz. ‘.‘.Arid' whereas' heretofore, to wit, on the 3d of' February 1813, the defendants bargained for and bought of the plaintiff, an,d foe plaintiff, at the special instance, and request of the defendants, foen and there sold to the defendants,, at foe county- aforesaid,, a large, quantity, to, wit, sixty hogsheads of tob.acco^ whereof45,000. weight was to be crop and 15,000 weight second tobacco, af. the rate, or price of three dollars for- every hundred weight of the crop, or first quality tobacco, and, two. dollars and fiftycefos for every hqndred weight of the, secqnd quality to-, bacqq, and also, qpe dollar for each cask, containing foe same, to be delivered by the plaintiff to, foe defendants, and inspected at Beard’s warehouse, in Annfi-Arundel county, viz,., at the county aforesaid, on or before foe tenth day of May- foen. next ensuing, and to be paid; for by the defendants on foe. twenty-fifth day of December then next ensuing; and in consideration, thereof, and that the plaintiff at the like special instance and request of foe defendants, had then and there undertaken, and faithfully pro-? n-ised the defendants, to deliver foe said tobacco at the. time and .place aforesaid, they the. defendants, foen and there undertook, and faithfully promised foe plaintiff to accept the said tobacco of him the plaintiff, and to pay him for the same on the day aforesaid; and although the plaintiff afterwards, and before the tenth day of May then next ensuing as aforesaid, viz. on the fifteenth day of March, at Beard’s warehouse in Anne-Arundel county, tol wit, at the county aforesaid, did deliver to the defendants eleven hogsheads of crop tobacco, amounting in the whole to 10,239 weight, and ten hogsheads of second tobacco; amounting in the whole to 9025 weight of the same, together with 21 casks containing the same; and although the plaintiff was ready and willing, and then and there offered and tendered to deliver the balance or remaining part of said sixty hogsheads of tobacco, so as aforesaid contracted for, to the defendants, and then and there requested the defendants to accept the same; yet the defendants, not regarding their said promises and undertakings, did not, lior would, at the said time when they were so requested, or at any timg before or afterwards, accept the balance or remaining part of the said sixty hogsheads of tobacco, of and from him the plaintiff, neither have they, nor either of them, paid the plaintiff for the whole of the 'said sixty hogsheads of tobacco, or for the twenty1 one hogsheads delivered to them, or for any part or parcel of said tobacco, but then and there wholly refused and neglected so to do, and do still refuse to pay the same. Nevertheless,” &c, The general issue was pleaded, and at the trial the plaintiff proved the delivery of twenty-one hogsheads of tobacco, eleven of which were at three dollars, and the residue at two dollars and fifty cents per hogshead, on or about the latter part of March 1813. The defendants then offered in evidence a special agreement, which was admitted to be in the hand writing of the plaintiff, and is in these Words: “I have tins day sold to Messrs. Hodges and Lonsdale 60 hogsheads of tobacco, (of my make and now oh hand,) 45 thousand weight of it crop, and 15 thousand weight second, at B3 per hundred for the crop, and g2| t pm hundred for the second, and one dollar for each cask, to be paid for on the 25th day of December next. The' tobacco to be delivered and inspected at Lhard’s Point' warehouse between this and the 10th of May next.
    
      Where there i? 9 subsisting special agreemem, a party to it cannot feqovcr on Reno-val counts; he jnust declare on special agreement, and ihntbpjng the gist of the action, it must be Stated in the larfotion.
    A declaration on a special agreement' tnust state álí the essential parts of the agree-
    ' Where an agreement formed an entire contract, to enable the'plain$uf to recover oñ it," he must' prove performance or ■tender to perform ¿very tin iir ' re quired by on lus part to be'per-formed.
    If a contract be rescinded by the parlies after its part performance, by the plaintiff, be may recover ibr the part performance on a general cout\t.
    ‘ A subsequent Íiarol agreement o "postpone the delivery of articles under a contact without seal, is not a \va\ver of the ooilmici, but pnly an enlarge* puuit of the lime for its* perfqrawancs.'
    
      
      Nicholas Watkins1 of T/rnL*
    
    3 February, Í81T
    
      The defendants also offered in evidence the deposition of George Allen, taken by consent, who proved; “that early in April 1813, he was requested by Hodges and Lansduh to britig tip in his boat the tobáceo purchased by them of ■Nicholas TVaildns', that they delivered to him a letter dated the 3d April 1813, directed to Watkins; that he according* ly called on Watkins, and delivered the letter to hiin about three days after the date of it; that Watkins told the deponent; there were 21 hogsheads of tobacco at Beard’s Warehouse which he wished him to carry to- Lansclale and Hodges, thé balance of the tobacco purchased by them he could not deliver, being too busy at that time on the farm; that when the deponent returned he would haul him a load down; that the deponent expected to be back in about a week from that titiie, and the load would be from 40 to 43 hogsheads. This deponent further states* that when he was coming up,the British were in the bay* and were close behind him.” The letter mentioned and referred to in the foregoing deposition* dated'at Baltimore the 3d of Aprif, 1813,and directed to the plaintiif, is hereinafter set forth*. The de- ■ fendants further offered in evidence the deposition of Richard Welsh, taken by consent, who proved; “that late in the fall of 1813, he was at the plaintiff’s tobacco house, where he was getting out wheat; that whilst there, Wm¡ M. Bans-dale, one of the defendants,- rode up,- and requested the plaintiff to deliver the tobacco, or the balance of the tobacco, this’deponent docs not precisely recollect which, and that the plaintiff replied that he could not deliver it, as he was busy in -getting out-his wheat, and that his family depended on that for their living.” The defendants also proved, that a quantity of 'tobacco, about 40 hogsheads, was sold by the plaintiff at a much higher price in the spring of 1815. The plaintiff then offered in evidence the three following letters, admitted, to be in the hand writing of the defendants, and addressed to the plaintiff, viz. 1st. “Baltimore, 9th March 1813. Dear Sir,- We have authorised Mr. Harrison to send up your tobacco in his boat, and will thank you to deliver it to him as fast as possible. You will oblige us if you will carefully take the samples of all yon have to inspect, and send them by the boat.” 2d.-ciBalti-more 3d April, 1813. Dear Sir, We wish you to forward by capt. Allen as much of your tobacco as he can receive. - As the balance of your crop is now to inspect* you wilf oblige us by taking samples of every hogshead, and sending with the tobacco. From what we can see through the heads of those here, we think them nothing extraordinary, and hope the yellow is all to come. You will please to 'dispatch capt. Mien as soon as possible.” 3d. Baltimore, 9th April, 1813. Dear Sir, The alarming news received to day makes it necessary for me to 'countermand the orders X gave capt. Mien respecting your tobacco. You will on the receipt of this, stop carrying down another hhd. of your tobacco, and if the capt. has any on board, yóu will 'particularly oblige me by telling him to have it put back in the shed of the warehouse, and wait to receive from us further orders.” On these facts the defendants moved the court to direct the jury, that the plaintiff was not entitled to recover; which direction the court, [Hanson and Ward, A. J.j gave to the jury. The plaintiff excepted, and verdict and judgment being against him, he appealed to this court.
    The cause was argued before Buchanan;, Martin, and Stephen, J:
    
      Magnider, for the appellant.
    It is contended, on the part of the appellant, that for the 21 hogsheads of tobacco proved to have been sold and delivered by him to the appellees, he was entitled to recover. Evidence was given at the trial, that part of the tobacco was delivered. The appellees, by their letter of the 9th of April 1813, countermanded their previous orders, and directed that the balance should not be sent until further orders from them. No further orders were given by them until the fall of the year. The appellant was under no obligation to deliver the tobacco until it was paid for, The appellees should have tendered payment. The appellant can recover for the tobacco delivered, and the appellees’ right of action against the appellant is for the nondelivery. The last letter of the appellees did away the contract. If the appellees had sued the appellant for nondelivery, they could not have founded their action on the contract. They cannot set off the nondelivery of the tobacco in this action.
    
      Ileath, for the appellees.
    A written contract was entered into between the parties on the 3d of February 1813, ■whereby the plaintiff in the court helow was to deliver to the defendants at Beard’s warehouse, 60 hogsheads oí tobacco of the plaintiff’s make, and on hand, 45,000 of it to be crop, 'and the residue second tobacco, at stipulated prices; to be delivered between that day and the 10th of May following, to be paid for on the 25th of December following. Part of tlie tobáceo was delivered, and on the 9th of April the defendants order a siispension of the delivery of the tobacco, ill consequence of the arrival of the Enemy in the bay, to which the plaintiff does not object. In the autumn they requested á delivery of the residue of the tobacco, which the plaintiff declines, but subsequently sells it, and brought this action. .1. The. declaration contains four counts, three general', and one special. On nteither of them .was he entitled to recover. General counts cannot be’proper where there is a special contract still Existing.. and unexecuted. Weston vs. Downes, Doug. 23. Power vs. Wells, Cowp. 818, recognized in Towers vs. Barrett, 1 T. R. 133. It is not pretended that this contract has beets executed by the plaintiff.; It has not been rescinded or annulled, as the acts of the parties prove. No intention was indicated by the defendants tó rescind or annul it, if irideed they could, but one party cannot rescind a contract except wliéré, by the terms of it, privilege is given to do So. Hunt vs. Silk, 5 East, 448. 1 Pow. on Cont. 412. The plaintiff acquiesced in the- suspension; he made no objection to or refusál of it,- átid gave ho notice to the defendants that be considered the contract rescinded. The Contract here is in páit Executed, -and the parties could liot be placed in their original situation. Where that is thé caste general counts cannot be4 supported. Giles and others vs. Edwards, 7 T. R. 178. This was nothing rniore than! á suspension' of time for the' delivery, which ivas not important* Change of the time dues not create a hew1, or annul the old contract. Cuff and others vs. Penn, 1 Maule & Selw. 21. This contract then is' unexecuted and still open,, of course upon tire4 general. Counts' the' plaintiff caimof recover.
    2. The special count is bad on three grounds — isf- Be-’ cause of a variance between the contract declared ofi and that proved. 2d. Because of a variance between the; ¡breach alleged and that proved; and 3d. The' teh'der is not-' alleged to have been made at the proper time. 1st. As té1 the first variance' — The declaration state's the contract t'U be for 60 hogsheads of tobacco, and the proof is 60 hogsheads of the plaintiff’s make, and on hand. This is á sub* staii tial variance, There was a good reason operating-with the defendants, for. the insertion of the words, that the tobacco should be of the., plaintiif’s make, and then on hand. Anonymous, 1 Ld. Raym. 735. Penny vs. Porter, 2 East, 2, (note.) Brown vs. Knill, 2 Brod. & Bring. 395, (6 Serg. & Low. 167.) Bull. N. P. 145. 2d, The plaintiff in his declaration avers a tender, and there is no, such, proof) but the proof is directly .the , reverse. Where a tender is averred, it must be proved; Jones vs. Barkley, 2 Doug. 694, per Buller, J. Chitty’s Plead. 518. 1 Selw. N. P. 94, 95, 96, 99, 100. “I am ready to pay,the debt- or to perform tire duty,” is no tender. 6 Bac. Ab. tit. Tender, &c. (B 1.) 447. The party must do every tiling necessary, &c. Clark vs. Tyson, 1 Stra. 504. 3d. The tender as averred was not in proper time. Cro. Eliz. 73. Plowd. 172, 174. 12 Mod. 421. Lancashire vs. Killingworth, 1 Ld. Raym. 686. The contract here is, that the money was to be paid, after the delivery of the tobacco; the tobacco was to be delivered before the 10th of May, and it was to be paid for in December following. The party roust aver and prove performance; this is a condition precedent. Thorpe vs. Thorpe, 1 Salk. 171, and 1 Ld. Raym, 666. Pordage vs. Cole, 1 Saund. Rep. 320, (and notes.) The postponement of the delivery of the, tobacco does not destroy the contract. Cuff and others vs. Penn, 1 Maule, and Selw. 21. Morrison vs. Galloway, in this, court, at December term 1809.
    
      Magruder, in reply.
    The plaintiff did not rely on his last count in the declaration. The court directed the jury that he,could not recover on any of the counts, He may recover for the value of the tobacco delivered. The only; question is,. whether there is any thing in the contract which prevents a recovery after the letter of the 9th of April. 1813 wa3( received by the plaintiff? The tobacco delivered was in strict compliance with the contract. Where a contract has been pai-tly performed, it may be so situated, as not to be fulfilled, and yet the party may recover so fin- as, he has performed. The letter amounted to a waiver of the, contract. It was similar to a contract to build a, house, where there is. an alteration in the plan. The alteration is a waiver, and the workman may recover for the work done. So here, as far. as the tobacco was delivered, the plaintiff may recover.
   The.opinion of the court was.delivered by.

Martin, J.

This is an action on the case, instituted by the plaintiff to recover the price or, value of twenty-one hogsheads of tobacco, fold and. delivered to. the defendants, The declaration contains.four counts. 1st, A general inde-_ hitatus assumpsit 2,d. A quantum. merúif. 3d. An insi~u mul computassent And 4th. On a special agreement. The. plaintiff offered evidence to prove the delivery of, twenty-one hogsheads of tobacco to the defendants, some time in. March 1813. The defendants.then read to the jury a special agreement, admitted, to be in the. hand writing of the. plaintiff, in the following words: C.‘T have this day sold to. Messrs. Hodges and Lansdale. 60 bhds. of tobacco, of n\y. make, and now on hand, 45-thousand, weight of it crop, and, 15 thousand, weight second, at S3 pr. hundred.forthe crop, and g2:j- pr. hundred for the second, and.SI for each cask, to be paid for on the 25th day of. December next; the tobacco to be delivered and inspected at Beard’s Point warehouse, between this and the 10th of May next. 3d. Febry,, 1813. Nicholas Watkins of. Utos.”,

It is an established rule of law, that where there is a subsisting special agreement, a party to it shall not recover, on general counts. Tie must deólaré on the ¿pedal agreement, and that being the gist of the action, it must be stated in the declaration. Weston vs. Downes, Doug. 23. Hulle vs. Heightman, 2 East, 145. 1 Esp. Dig. 263, (139.) If then this contract was in force between the parties, the' plaintiff could pot. recover in this action. He could not recover on the three first counts, which are general, nor on the fourth. For altho’ it is founded on the special agreement, it has oniitted some of its, essential parts. The agreement is, that'foe tobacco sold and to be delivered, “should he the make of the plaintiff, arú on hand at the time the. contract was made.”. This is an important stipulation on the part of the plaintiff, and not mentioned in foe declaration. Rut if the declaration had strictly, pursued the agreement, the plaintiff was not entitled to' recover from the evidence. The agreement formed an entire contract, and. to enable foe plaintiff to recover on it he must prove a performance, or tender to perform every thing required by. it on his part to be performed, Cutter vs. Powell 6 Term. Rep. 320. The agreement is, that lie shall deliver sixty hogsheads of tobacco to the defendants by the 10th of May 1813; the evidence is, that he delivered 4wenty-one hogs-: heads in March, and no attempt is made to show a delivery or tender of the balance.

If the original contract was, rescinded by the parties, after a part performance of it by the plaintiff’, either by waiving the performance of the residue of the contract, or entering into a new one, so inconsistent with the first, that they could not stand together, the plaintiff might recover for the part performance on a general count. To bring himself within this principle of law, he offered three letters from the defendants in evidence to the jury, the last of which only, dated the 9th of April 1813-, is connected with •this part of the case. In that letter he states, “the alarming news received to day makes it necessary for me to countermand the orders I gave. capí. Rílen respecting your tobacco. Y ou will, on the, receipt of this, stop carrying down another hogshead of your tobacco, and if the capt has ally on board, you will particularly oblige me by telling him to have it put safely back in the shed of the warehouse, and wait to receive from us further orders,” Hero then a proposition, on the part of the defendants, that the plaintiff should not deliver the tobacco by the time., stipulated in their contract, but that he should keep it until they demanded a delivery of it. Whether the plaintiff assented to this proposition., was a fact, under a different course of-proceedings, that ought to have been submitted to the jury, and evidence was offered to prove that he did assent to it. ilut it is perfectly immaterial in this case, for it has been ire, quently determined, that a subsequent parole agreement to. postpone the delivery of articles under a written contract without seal, is not a waiver of the contract, but only an enlargement of the.time, for the-performance of it. la Warren vs. Stagg, referred to in 3 Term. Rep. 591, Buller, J. held, that an agreement to extend the time for the, performance of a contract, was not a waiver, but a continuance of the original contract. In Keating vs. Price, 1 Johns. Ca. 22, the same doctrine was maintained by the. court. That was an action founded on a special agreement in writing, by which the defendant promised to deliver to the plaintiff' a quantity of staves, on or before the 1st of May 17'9G. Parole evidence was offered to prove the acknowledgment of the plaintiff, that he had. made the contract as before stated, but that he had agreed to extend the, time for delivering them, until the next spring. A verdict •was taken fop the plaintiff, subject to the opinion of the court on several points, and among others, whether the timo, of performing the contract could be extended by a subsequent agreement between the parties. The court said this being originally a simple contract, it was competent for the parties to enlarge the time of performing it. An extension of the time may often be essential to the performance of executory contracts, and there can be no reason why a subsequent agreement for that purpose should not be valid: and directed a nonsuit to be entered. So also in the case of Cuff & others vs. Penn, 1 Maule & Selw. 21, an action was founded on a special agreement in writing, by which the;, plaintiffs stipulated to deliver to the defendant a quantity of bacon at certain times particularly mentioned in the agreement. After a part of the bacon had been delivered under this contract, a parole agreement was made between the parties, that the time for the delivery of the residue sh®u,Id be extended. The plaintiffs, after the. time had-elapsed at which they were to deliver the bacon under the contract in writing, tendered the residue to the defendant, who refused, to receive it, alleging the first contract was at end. But Lord Elknborough determined that the subsequent parole agreement did not substitute a new contract, in'the place of the first, but was a dispensation only with the performance of the original contract, in respect of the delivery of the bacon at the stipulated times, and this was confirmed by the court, on a motion to enter up a nonsuit The plaintiff, in the case now before us, if he did not consent to the enlargement of the time stipulated in the written contract, ought to have delivered the tobacco, or tendered a delivery, on or before the 10th of May 1813. If he did assent to extend the time lie ought then to have delivered it, or made a tender, at some subsequent period, and his declaiation ought to have contained a count setting out the contract, and a performance^ or tender to perform, on his yurt.

JUDGM^XT. ¿.XFIKMEDu .  