
    
      W. H. DeGroot vs. John T. Darby, J. F. & J. H. Steinmeyer.
    
    Assumpsit for goods sold and delivered. The declaration contained no count for interest, nor was it claimed in the hill of particulars i — Held¡ that plaintiff was not entitled to recover interest on proof of a special agreement to pay it.
    Suit by plaintiff alone for goods sold and delivered by a firm of which plaintiff and one B. had been partners. B. had assigned all his interest to plaintiff: — Held) that plaintiff could not recover, without showing that the debt to the firm had been extinguished, and a new liability assumed to the plaintiff, alone, by agreement of the parties.
    3.1). and the other defendants had also been copartners. Before the dissolution of their copartnership, 3. D. had confessed a judgment to his copartners, to indemnify them against the demand on which the plaintiff sued; and, aftorthe dissolution, 3. D. had admitted the debt as due the plaintiff alone: — Held, that such proof did not show an extinguishment of the old debt and a substitution of a new one, by contract, so as to entitle the plaintiff to recover in his name alone.
    If there had been anew contract, the plaintiff should have declared upon it specially.
    
      Before O’Neall, J., at Charleston, Spring Term, 1853.
    Assumpsit, against the defendants as partners, for goods sold and delivered.
    The report of his Honor, the presiding Judge, is as follows:
    “ The proof of partnership was such as the Court of Appeals had decided to be enough to charge them as partners, and need not be reported.
    “The proof of the plaintiff’s debt consisted in the admission of Darby, made by confession of judgment in this case a few days before the sheriff closed his store, under execution at the suit of the Steinmeyers.
    “ The defence relied on was that the plaintiff was in partnership with another, one John P. Britton, at the time the account was made, and therefore could not recover, suing alone.
    “It appeared that to February, 1848, Britton was the partner of the plaintiff; that he (Britton) then sold to him his entire interest both in the stock of, and also in the debts due to, the firm. The plaintiff proved that Darby, after the dissolution, and before the Steinmeyers levied their execution, admitted the balance of the account, $3,408.61. Of this balance, $2,183.91 was for goods furnished by the plaintiff after the dissolution. Payments, made before the admission by Darby, amounting to $1,450, were credited on the account before the balance of $3,408.62 was struck. This, the defendants contended, should go in payment of the sum for which they were liable to BeGroot alone.
    
      “ The plaintiff proved that the course of trade was to pay every six months, and if not done that interest should be charged. It was proved that Darby promised to pay interest accordingly.
    “ The plaintiff counted merely for goods sold, and on the money counts. He did not count on any special promise, such as that Britton having transferred his interest in the account, the defendants, in consideration thereof, promised to pay it. There was no count in the declaration for interest.
    “The jury were instructed, 1st, That the plaintiff had the right to apply the payments to the extinguishment of the account before dissolution. 2d, That the plaintiff could not recover on that part of the account which was contracted before the dissolution of the partnership existing between himself and Britton ; for the legal right was still in the partners, and there was no count which would sustain the action on the equitable right of the plaintiff as a consideration to support a promise, express or implied, to him after the dissolution. 3d, That the plaintiff could not recover interest, as he had no count in his declaration on a promise to pay interest. 4th, That he was entitled to recover all of his account, $2,183.91, contracted since the dissolution of partnership between himself and Britton. The jury found accordingly.”
    The plaintiff appealed on the grounds :
    1. Because his Honor refused the right of the plaintiff to recover any interest, notwithstanding the plaintiff proved that the acting copartner had, by a confession of judgment, admitted the same as a copartnership debt.
    2. Because the Judge charged that the transfer of the account of DeGroot & Go. to the new credit, and accepted by the acting copartner as a new debt to DeGroot alone, was not a contract for valuable consideration, to wit: a discharge from the debt due to DeGroot & Co., and was not binding on the defendants, the Steinmeyers; whereas it is contended that the said transfer and discharge was a good and sufficient contract.
    3. Because the Judge erred in ruling that interest was not recoverable under the declaration, and especially under the confession binding all parties.
    
      Walker, for appellant.
    
      Memminger, contra.
   The opinion of the Court was delivered by

Whitner, J.

The plaintiff claims a right to recover interest in this case. The action was for goods sold and delivered. The declaration contained, no count for interest, and although it did contain the usual count for money had and received, the bill of particulars, we are informed in the course of the argument, was for goods alone, and without any item for interest.

It cannot be said, in the ordinary transaction of the sale of goods, that interest is an incident of the contract itself. The first inquiry is, whether there was a special agreement to pay interest eo nomine, or to do something towards the payment of an admitted sum. That would imply a promise, for in no just sense can it be maintained that the interest constitutes a part of the price of the goods. I do not understand this principle to be drawn into controversy. Cases in our own State are numerous in reference to such contracts as carry interest with them. Harp. 83; 1 Hill, 393 : 3 McC. 505; 2 Bail. 394.

The mere statement of such a proposition, it would seem, discloses the necessity of its appearance in the pleading in some form. The very object of all pleading is to advertise the party sought to be charged, of the matter or thing claimed. Hence the necessity of a declaration ; and where, according to our forms and the nature of the demand, it might otherwise be too general, hence the propriety of a bill of particulars. The law abhors surprise and undue advantage, and therefore requires all reasonable certainty. In this particular case, the party would be wholly at sea, if he may be made liable for that which is outside of the contract set forth — which in no way springs from it as an incident — which, though susceptible of allegation, is neither set out by special count, nor notified in the bill of particulars. Such a rule would be obnoxious to the double imputation of surprising the defendant, and of giving to the plaintiff what he has not asked for. On the contrary, that is but a reasonable rule which requires such an advertisement, at least as may enable the parties to prepare to meet proof by proof, that the truth may be known.

Judicial authority has been adduced of the refusal of new trials wherein juries, in certain extreme cases, have allowed the interest upon a special contract, though not specially counted for, because such finding was according to the justice of the particular case. Still, such cases fall short of the position now taken.

The cases cited, however, in 9 Eng. C. L. Rep. 292 and 3 Taunt. 157, are directly of that character. I cannot see, however, that they furnish a rule. None have gone to the extent of this case; and before we will attempt an inroad by reversing that which we believe to be according to well settled principles and forms of practice, in an excursion after the particular ji«.sNce of the case, it is perhaps wise to pause until we have further light.

The plaintiff also insists on his right to recover in this suit, brought in his own name, for goods sold and delivered the defendants by a firm of which he was a partner. This must depend on some legal transfer authorizing a suit in his own name, or on some change in the contract, or the substitution of a new contract springing from the original. I shall not controvert that the parties were competent to make a new contract, and that the old contract would furnish a sufficient consideration to give it validity.

This original contract was a chose in action, and the ground encounters the general rule of law that a chose in action cannot be assigned. When the plaintiff claims the benefit of an exception, he must bring himself strictly within it. No change by either of the contracting parties, by an arrangement among themselves, can be made so as to affect the equities or legal right of the other contracting parties, without their express assent. The change of contract or substitution of a new one is incomplete, unless the contract is extinguished. The discharge of a subsisting debt is a good consideration for a new debt; and, therefore, it is, that extinguishment of the original debt is an essential ingredient; and in turn, the new promise, and its acceptance, operates as a discharge — hence the mutuality between the parties. These are plain principles, to be found well sustained in Chit, on Con. 613; 4 B. & Cres. 166; 8 B. & Cres. 402. “The plaintiff proved,” says the report, “that Darby, after the dissolution, admitted the balance of the account,” which was shewn to include as well the demand in favor of DeGroot & Co., as of DeGroot alone, and that previous tó the dissolution he had likewise confessed a judgment in favor of the Sfeinmey-ers. But Darby, it is clear, could not, after the dissolution, have bound his former associates in an original contract, nor was he competent to bind them in a new one, although based on the old one, unless some special authority had been conferred for that purpose. The admission of a debt by Darby, made by his confession of judgment, and its acceptance by the Steinmeyers, to secure them against apprehended loss or liability, can in no way establish the proposition to be made good by the plaintiff. A new promise by Darby may have fixed his liability on the new contract, and, if accepted by the plaintiff, may have extinguished the original debt, and thereby have released the other defendants wholly. Again, if there was a new contract, a special count on this special promise may have been necessary. So that the right to recover, as to this demand, in the present action, is not perceived by this Court.

The motion for a new trial is dismissed.

O’Neall, Wardlaw, Withers, Glover and MüNRO, JJ,, concurred.

Motion dismissed.  