
    Gregory vs. Mack.
    Where the parties to a Contract agree upon a particular thing as a medium of payment—e. g., lands, goods or labor—and the contract is afterwards executed, it is the same thing, in legal effect, as if the like sum had been paid in money, and may be so treated in pleading.
    M. requested G. by letter to effect the sale of a farm owned by the formef, for at least $20,000—such part of the purchase money as G. should think advisable, to be paid in advance, and the residue in instalments “ running from one to three years”—M. promising in the letter that all G. could get over and above the $20,-000, should be equally divided between them. G. thereupon contracted to sell the farm to W. for $39,500—W. to pay $19,500 in advance by conveying to M. a house and lot, and the residue in instalments at two, three and four years. Upon the contract being delivered to M., he expressed his entire approval of it, promising to pay G. by conveying to him one half the house and lot. After W. had completely executed the contract, however, M. refused to pay G. in any form; whereupon he sued M. upon the promise contained in the letter, claiming one half the excess of purchase money beyond $20,000. Held, that as the sale negotiated by G. varied from the terms prescribed by the letter, he could not re. Cover without showing a new promise or agreement to pay the sum claimed; and this, notwithstanding M. subsequently adopted and executed the sale.
    Had G. sued on a quantum meruit, he might have recovered what his services in making the sale were reasonably worth. Semble.
    
    Whether M.’s promise to convey to G. one half the house and lot, was valid, so that G. might have recovered had he declared upon it, quere.
    
    The ride that a plaintiff who proves all the allegations in his declaration ought not to be nonsuited, even though he fail to make out a cause of action, applies only where a motion in arrest will present the same question as the one presented at the trial.
    Accordingly, in assumpsit, where the declaration concluded with the usual allegation of a promise to pay when requested, and the case presented at the trial was such as to render an express promise essential to the plaintiff’s right of action, but no promise was proved: held, that the circuit judge did right in ordering a nonsuit; for, after verdict in favor of the plaintiff, the promise alleged would be presumed to have been an express one.
    Assumpsit, tried at the New-York circuit, C. Judge, in March, 1840. The action was before Edwards, brought in.January term, 1838, on a proposition or agreement of which the following is a copy : “ Ithaca, May 20,1836. Wm. H. GregoryEsq’r—D’r Sir—I wish you to effect a sale of my farm lying on the south hill near the village of Ithaca. The farm consists of two hundred and fifty-eight acres. " If you sell it, I must have twenty thousand dollars. All you can get over and above that price, to be equally divided between us. And I hereby empower you to sell the same, conditioned as above; payments running from one to three years, and so much of the purchase money down as you in your judgment may deem it advisable. Respectfully, &c. H. Mack” On the 31st of May, 1836, the plaintiff sold the farm to Effingham W. Walgrove, and, as the attorney of the defendant, entered into written articles with Walgrove. The terms agreed on were as follows : Walgrove was to pay the defendant for the farm $39,500, as follows—$19,500 of the sum was to be paid by a house and lot in Greenwich-street, in the city of' New-York, which Walgrove was to convey to the defendant in fee, subject to a mortgage of $5500, and subject also to a certain lease for four years ; five thousand dollars was to be paid in the notes of Walgrove at six, eight and ten months, with interest; and the balance, $15,000, was to be secured by bond and mortgage on the farm, payable in three equal instalments, at two, three and four years, with interest. But such mortgages as there then were on the farm were to be deducted from the $15,000. The conveyances were to be executed and every thing completed by the 20th of June then next.
    Soon after the agreement with Walgrove was made, the plaintiff delivered it to the defendant, “ who appeared to be delighted with it.” The notes of Walgrove for the $5,000 to be paid in that way, had already been made, and were delivered to the defendant by the plaintiff at the time he delivered the contract. Something was then said about the mode in which the plaintiff was to be paid, and it was agreed that the defendant was to convey to the plaintiff one half of the house and lot in New-York which Walgrove was to convey to the defendant. On the 4th of June following, all the writings were executed in pursuance of the agreement made by the plaintiff with Walgrove. The defendant conveyed the farm to Walgrcve for the consideration, as expressed in the deed, of $39,500, subject to two mortgages, amounting to $7,400, which sum was declared to be a part of the purchase money. Walgrove conveyed the house and lot in Greenwich-street to the defendant, in pursuance of the contract; and gave the defendant a bond and mortgage on the farm to secure the payment of $7,600, payable in three equal instalments, at two, three and four years, with interest. This sum, together with the mortgages already on the farm, ($7,400,) made up the sum of $15,000, which remained of the $39,500 after deducting the price of the house and lot in Greenwich-street and the notes for $5000 which had already been given. The notes were all duly paid.
    The defendant subsequently promised that he would give the plaintiff a deed of one half of the Greenwich-street property as soon as he got his deed from the register’s office where it had been left to be recorded. The plaintiff claimed $9,750, being one half of the sum above $20,000 for which the farm was sold. Before suit brought, he applied to the defendant by letter for payment of the $9,750, or for a conveyance of one half of the Greenwich-street property; but the defendant gave no answer.
    In the fourth count of the declaration, the plaintiff, after stating the defendant’s contract, and the contract made by the plaintiff with Walgrove, averred that Walgrove afterwards, to wit, on the 4th of June, 1836, at, &c. did perform and fulfil all things on his part to be performed and fulfilled, &c. and did then and there make payment of the said sum. of $39,500 to the defendant in manner and form as was provided for and agreed upon in and by his agreement; and that the defendant conveyed the farm to Walgrove, &c. and did receive payment therefor in manner and form as was provided for by the agreement with Walgrove. By means whereof and of the promises in this count mentioned, the defendant then and there became and was indebted and liable to pay to the plaintiff the sum of $9,750, being one half of the amount or price of said farm over the sum of $20,000. And being so indebted, the defendant undertook and then and there faithfully promised the plaintiff to pay him the said sum of $9,750, when he should be thereto afterwards requested.
    On a motion for a nonsuit, the judge decided that the plaintiff had not proved enough to sustain this -action ■; that by the agreement the defendant was to receive $20,000, and all over that sum was to be divided between the plaintiff and the defendant ; that it did not appear that the defendant had received the $20,000; that although the facts proved were substantially the same as set forth in the fourth count, yet they were not sufficient in law to infer a promise to pay, and that •therefore the promise averred at the close of that count was matter of substance, and should be proved. To this decision the plaintiff excepted. After the plaintiff had given some further evidence, the motion for a nonsuit was renewed ; and the judge decided that the proof did not sustain the declaration, and directed a nonsuit to be entered. The plaintiff excepted, and now moved for a new trial on a bill of exceptions.
    
      C. P. Kirkland, for the plaintiff.
    
      B. G. Ferris 4r J. v2. Collier, for the defendant.
   By the Court, Bronson, J.

If we assume that the agreement with Walgrove was made in pursuance of the plaintiff’s authority to sell the farm, I think the judge was wrong in holding that the defendant had not received his $20,000. He had been paid $5,000—the amount of the notes—inmoney, and had also received the Greenwich-street house and lot at the stipulated price of $19,500. As a question of payment, no distinction can be made between the two sums. When the parties have agreed on a particular thing as a medium of payment, whether it be lands, goods or labor, and the agreement has been carried into execution, it is the same thing in legal effect as though the like sum had been paid in money. It is so even as a question of pleading. (Beardsley v. Root, 11 John. R. 464 ; Ainslie v. Wilson, 7 Cowen, 662 ; Hands v. Burton, 9 East, 349 ; Pickard v. Bankes, 13 id. 20 ; Clark v. Fairchild, 22 Wend. 582, et seq., per Cowen, J.) The two sums make together $24,500, and leave a surplus of $4,500 to be divided equally between the plaintiff and defendant, in pursuance of their agreement.

But there is a difficulty in the plaintiff’s case. He did not pursue his authority in making sale of the farm. The defendant in his proposition spoke of “ payments running from one to three years j” and the contract with Walgrove was, that the amount of purchase money which was to be secured by bond and mortgage should be paid “in three equal instalments,at two, three and four years.” Another objection is, that the proposition did not authorize the plaintiff to contract to receive a house and lot, or any thing else but money, in payment for the farm. I think it quite clear that the agent departed from his authority, and that the agreement made with Walgrove did not bind the defendant until he had subsequently ratified and made it his own. He did ratify the agreement, and it has been carried into execution between him and Walgrove. That has relieved the plaintiff from any claim which Walgrove might otherwise have made upon him on the ground of his having undertaken to act as the attorney or agent of another, without sufficient authority. But I do not see how this ratification can give the plaintiff a legal title to the particular compensation which he was to receive if his authority had been strictly pursued. He may be entitled to a reasonable reward for his services in making the sale. But that is not what he demands. He is suing upon a special contract, and before he can recover, he must show that there has been a performance on his part. It is not enough that he has rendered a valuable service to the defendant. It must appear that he has done the very thing for which the reward that he demands was promised. Although the defendant was very willing to part with his farm on the terms mentioned in the agreement with Walgrove, he may not have been willing to take the New-York property at the stipulated price of $19,500, and .account with the plaintiff for it at that sum. The plaintiff cannot make title to the particular compensation which he demands without showing some new promise or agreement by the defendant to pay that sum.

There was a promise at the time the agreement with Walgrove was communicated to the defendant, and that promise was subsequently repeated. The defendant said he would convey to the plaintiff one half of the New-York property. If that was a valid contract, it is enough to say that the plaintiff has not counted upon it. He seeks to recover upon the original proposition or agreement, and he cannot count upon one promise, and entitle himself to a verdict by proving another

The plaintiff insists that he proved his whole case as it is laid in the fourth count of the declaration, and, therefore, whether he made out a good cause of action or not, he was entitled to a verdict, leaving the defendant to his motion in arrest of judgment. (Safford v. Stevens, 2 Wend. 158.) But the whole count was not proved. There was no proof of the promise to pay $9,750 set forth in the conclusion of the count. On a motion in arrest after verdict that would be regarded as an express promise; (Beecker v. Beecker, 7 John. R. 99 ;) and the plaintiff is only entitled to a verdict when a motion in arrest will present substantially the same question as that which arose at the circuit. A different rule might enable the plaintiff to succeed at the circuit upon one ground, and afterwards retain the verdict upon another, and this, too, where there was no good cause of action. The nonsuit was properly ordered.

New trial denied.  