
    Linningdale against Livingston.
    ALBANY,
    Jan. 1813.
    Where a plaintiff declares on a special agreement, and also on the common counts,he may, at the trial, waive the special agreement and proceed on the common counts; and Where the evidence is sufficient to support the general count, supposing he had not declared on a special agreement, the plaintiff is entitled to recover on such genera! count, without any attempt to prove the agreement.
    
      It seems, that the defendant may, in such, case, give the special agree-'ment in evidence, in order to lessen the quantum Of. damages; but if offered merely to defeat the action, by showing a failure of performance on the part of the plaintiff, it is immaterial, and may he rejected.
    THIS was an action of assumpsit. The first count in the declaration was on a written agreement, dated the 3d May, 1807, by which the plaintiff promised, and bound himself, to deliver to the defendant, on or before the 1st May, then next, 130 logs of yellow pine, straight and fit for boring, &c. and that the plaintiff should find a person to bore the logs, &c. and to lay them, for the sum of 87 1-2 cents per rod, &c. and also to deliver 4 large logs for troughs, at the same time, &c. And the defendant promised to pay the plaintiff on the delivery of the logs, at the landing place of the defendant, 250 dollars, and 75 dollars more when they should be bored and laid, See. and 87 1-2 cents per rod, &c. The plaintiff averred a delivery of the logs, and a readiness to* perform on his part, and a nón-performance of the contract on the part of the defendant. There were two other counts on a parol agreement of the same import, and the common counts for goods sold and delivered, money paid, &c. The defendant pleaded non assumpsit, with notice of a set-off. '
    At the trial it was proved, that the agent of the defendant gave the plaintiff a receipt, dated the 12th June, 1807, for 130 logs delivered by the plaintiff; and the agent stated that he understood from the parties that the price of the logs was 2 dollars and 50 cents a piece. That the plaintiff said, by his agreement, he was to lay the logs immediately, and that he would send workmen and have it done in 20 days. The plaintiff, however, did not send the workmen until late in the autumn, when the defendant was going to town, where he resides in winter, and he then refused to let the plaintiff lay the logs, as it was not a proper time, nor according to the agreement. About a year afterwards, the defendant used some of the logs in making docks; and about three years after, he used the others in laying a water-course. |The plaintiff’s counsel declared that he did not proceed on the written agreement; but on the general counts in the declaration, and having proved the delivery and price of the logs, he rested the cause, contending he had produced evidence sufficient to entitle the plaintiff to recover; and it was so ruled by the judge.^
    The defendant then offered to give the written agreement in evidence, and to prove that the plaintiff had failed to perform the contract on his part; and contended, that this action was not sustainable on the general counts, but the plaintiff should have brought trover. The evidence was objected to, and overruled by the judge. It was proved that about 15 or 20 of the logs were used by the defendant, in building the dock, and that 1 dollar and 50 cents was the value of dock logs.
    The judge directed the jury, that the plaintiff was entitled to recover for the logs delivered, at the rate of 2 dollars and 50 cents a piece, and the interest on the amount, from the 12th June, 1807 and the jury found a verdict accordingly.
    A motion was made to set aside the verdict, and for a new trial.
    
      Slosson, for the defendant.
    
      Oakley, contra.
   Per Curiam.

The plaintiff, upon the trial, abandoned the special agreement, upon which he had declared, and went upon the general indebitatus assumpsit for goods sold, by proving the delivery and acceptance of the logs, and that the special agreement was no longer subsisting and in force, but had been put an end to by the refusal of the defendant to permit the logs to be laid, and by appropriating them to his own use. This evidence was accordingly admissible; and the cases of Cooke v. Munstone, (4 Bos. & Pull. 351.) and Tuttle v. Mayo, (7 Johns. Rep. 132.) allow the party in such cases to recover on the general counts. It is admitted, in Bull. N. P. 139. to be now the rule that, if there be a special agreement, and the work be done, but not in pursuance of it, the plaintiff may recover upon a quantum meruit, for otherwise he would not be able to recover at all. The case óf Harris v. Oke is there cited, in which Lord Mansfield ruled at circuit, and with the approbation of Mr. Justice Wilmot, that where the evidence would support a general count, supposing bo special agreement laid, the plaintiff may recover upon it, though there be a special agreement laid, whether he attempts to prove it or not. This decision was cited and sanctioned by the K. E. in Payne v. Bacomb, (Doug. 651.) and by the supreme court of Massachusetts, in Keyes v. Stone. (5 Tyng, 391.) A judgment on the general count would, no doubt, be a bar to an action on the agreement. In this case, the plaintiff never could recover for the logs delivered, and which went to the defendant’s use, except upon the general counts, for the agi~eemënt wa~ ndt catried fully into effect by him, and the performance had become impossible, by the act of the defendant.

But the defendant offered the special agreement in evidence, and it was overruled. It seems to be admitted, in Bull. N. P. 139. and with a reference to Keck’s Case, in 1744, that the de- • fendant might, in such case, give the special agreement in evidence, with a view to lessen the quantum of damages. But the defendant here did not offer it with that view, or to throw any new light on the subject, but he offered it for the express purpose of defeating the action altogether, because there was such an agreement,- and because the plaintiff had failed in the performance of it. In that view, it was overruled as immaterial, and it was properly overruled. There was no pretence that the agreement in writing differed, in any material respect, from the one declared on and admitted by the plaintiff’s testimony. There would be no use then in setting aside the verdict merely' to give the defendant an opportunity of producing the written agreement, and the motion for a new trial is accordingly' denied.

Motion denied:  