
    Formholz v. Taylor et al.
    
    1. Pleadings: special and common counts. A party cannot recover on the quantum meruit under a count sotting up a special contract; hut such recovery may be had under a pleading setting up both a special and a common count.
    
      Appeal from Johnston District Gourt.
    
    Thursday, June 26.
    
      Upon the 29th day of September, 1857, tbe parties defendant to this suit entered into an agreement with tbe plaintiff, in writing, as follows:
    “ Fourteen days after date, I agree to deliver unto O. D. Taylor and Nelson Libby, thirteen thimble-skeined two-horse wagons, also one one-horse wagon, and a one-horse top buggy, complete, for which said Taylor and Libby agree to give a bond for a deed of lot No. 5, in block 42, with a building thereon, in tbe city of Florence, Nebraska, the sum of six hundred and seventy-six dollars.
    “ O. D. Taylor.
    “ N. Libby.”
    Indorsed on the back thereof, as follows: “Received on the within the sum of three hundred dollars.
    “ William Formholz.
    “ Ottawa, September 29, 1857.”
    The plaintiff alleges in his petition, that, in pursuance of the terms of this agreement, he delivered, in good order, to defendants, the fullnumber of the two-horse wagons, as well as the one-horse wagon and buggy. It appears, further, from the pleadings and evidence, that there was yet due from the defendants upon the said lot, as part of the purchase money near the sum of six hundred dollars; that this amount had to be paid about tbe first of November, after tbe date of tbe above agreement; that time was made tbe essence of tbe contract, and that if defendants should fail to pay tbe purcbase-money when due, that they would forfeit tbeir right to a deed for said lot, and wholly lose tbe amount of tbe money paid.
    Tbe plaintiff claims that he is entitled to recover for tbe value of tbe wagons, &e., as tbe defendants have failed to assign said bond, or pay tbe balance of tbe money as stated in tbe written agreement, &e.
    Tbe defendants answer and aver that tbe plaintiff failed to deliver said wagons, &c., within tbe time agreed upon. That when they were delivered, they proved to be of a poorer quality than contracted for, that in consequence of tbe delay upon tbe part of plaintiff, tbe time was about expiring at which tbe balance of the purchase money bad to be paid on said lot, that the defendants were compelled to pay off tbe same, and that they took the title in tbeir own names. That plaintiff has failed to pay back the money thus advanced, and that tbe plaintiff having failed thus to fulfill bis part- of tbe contract, be -is not entitled to recover.
    The plaintiff amended his original petition, setting up an additional oral contract with defendants, by which be was to deliver to defendants 'three additional two-horse wagons, in consideration of which defendants were to pay off tbe amount due on tbe bond when it matured, and also obtain for plaintiff a title to said lot. This agreement tbe defendants deny, and aver that tbe three wagons were left with .them for sale, that they proved to be very inferior in quality, and that out of tbe whole of the wagons delivered, they had not received money enough to pay back tbe amount advanced to plaintiff, and the pay for the lot. Trial, and verdict for plaintiff, for $990. Defendants appeal.
    
      
      Edmonds & Ransom and Clarice & Davis for tbe appellant,
    in support of tbe proposition passed upon in tbe opinion of tbe court, cited 8 Pbil. Ev. (new Ed.), 899; Bush v. Chapman, 2 Gr. Greene, 549.
    
      Clark & Bro. for tbe appellee.
   BALDWIN, C. J.

There is one controlling fact in this case, that leads us to disfavor tbe somewhat technical objections of defendants to tbe ruling of tbe court, in refusing certain instructions asked, and in overruling tbe motion for a new trial. That is, tbe defendants received under their contract, in 1857, tbe sixteen two-borse, and tbe one one-borse wagon, and tbe buggy, property, according to tbe value placed thereon by plaintiffs witnesses, worth tbe sum of $1,460, and that could not at tbe time of delivery, according to tbe testimony of defendants’ witnesses, have been worth less than tbe sum of $1,050, and for which tbe plaintiff has to this day received but tbe sum of $800.

One position assumed by tbe defendants is, that tbe plaintiff, having declared specially upon tbe written contract, be cannot recover upon tbe additional count for tbe value of tbe property delivered, after it bad been made to appear that be bad failed to comply with tbe terms of tbe special contract. \The giving and refusing certain instructions by the court unfavorable to this position of defendants, is assigned as error.

Tbe counsel rely upon tbe ruling of this court, or rather tbe authorities cited by counsel in their briefs, as reported in tbe case of Eyser v. Weisgerber, 2 Iowa, 467, as tending to show tbe incorrectness of this ruling of tbe court.

Tbe court there held that when a party declares specially be must succeed upon bis special case, and cannot recover as upon tbe common counts; that where a party would recover for tbe reasonable value of services rendered or material furnished, upon a special contract, he must either declare in general assumpsit, of unite the common with the special counts. It was for this reason, alone, that the plaintiff had declared specially, and not upon both the special as well as the common counts, that the court held that the plaintiff could not recover on the quantum meruit. In other words, we understand the court, indirectly at least, to sustain the rule as adopted in Britton v. Turner, 6 N. H., 481. If not, however, clearly recognized in this case, it is without doubt in the case of Pixler v. Nichols, 8 Iowa, 106. The plaintiff in this case declares specially upon the contract, and also as upon the common count, for goods sold and delivered, and upon the authority of the above rulings of this court he could recover upon the common count, on the quantum meruit. We however think that the instructions asked by defendant were inapplicable, for the reason that the plaintiff relied upon his special contracts, and the-question was one for the jury whether or not the additional oral contract was made, and if so, whether it was not substantially complied with by plaintiff.

The very fact that the defendants paid the amount due on the bond is strong evidence, to our minds, that the oral contract, as alleged, was made. If it had not been made, the defendants could have complied with their part of the original contract by an assignment and tender of the bond to plaintiff. And if the plaintiff permitted it to be forfeited, it was his loss, not defendants’.

We do not propose to follow further the points assumed by the counsel of appellant. We think the charge of the court fully and clearly presents the law as applicable to the case, to the jury. We see nothing from the whole of the evidence that would justify us in disturbing the verdict, even if it was for a much larger amount. There is some evidence tending to show that the wagons were not, in every respect, finished, and of the best quality, but the defendants accepted of them at the time of their delivery, without complaint. The j ury, however, must have made as large ' deductions for the failure of the plaintiff to comply with the conditions of the contract, both as to the time of delivery, and the character of the work, as the evidence would justify.

Affirmed.  