
    The Thomas Manufacturing Company vs. John Watson.
    Aroostook.
    Opinion February 5, 1893.
    
      Action. Special Indebitatus Assumpsit. Damages.
    
    A contract for the delivery of machines by the plaintiff to the defendant and which contemplated sales thereof to others, and fulfilled on the part of the plaintiff, required the defendant to settle in one of three modes on a certain day. This he did not do. The court adheres to the rule that general indebitatus assumpsit for goods sold and delivered will not lie, but that an action of special assumpsit counting on the contract may be maintained; and damages to be assessed at the contract price.
    On exceptions.
    A verdict was rendered in favor of the plaintiff, under the instructions of the court, for fifty-eight dollars; and he took exceptions.
    
      Madigan and Madigan and L. O. Stearns, for plaintiff.
    
      Poivers and Powers, and Wilson and Lumiert, for defendant.
   Emery, J.

There was a written contract between the plaintiffs and defendant which is reported in full. It provided (among other stipulations) for the delivery of twenty-five Royal Self-Dumping Rakes at twenty dollars and fifty cents by the plaintiffs to the defendant between January 1, and June 15, 1889. It also provided for a settlement therefor by the defendant on September 1, 1889, in one of three ways at the option of the defendant (1) by cash, (2) by farmers’ notes taken by defendant in exchange for rakes and indorsed by him, (3) by his own note.

The plaintiffs delivered the rakes within the stipulated time, and they were received by the defendant. He did not, however, make any settlement for them in either stipulated mode, nor in any mode, nor is there any provision in the contract releasing him from the stipulation for a settlement on the day named. He thus committed a breach of that stipulation and of the contract.

While the plaintiffs could not maintain for this breach an action of indebitatus assumpsit for goods sold and delivered, they could maintain an action of special assumpsit counting on the written contract and its breach. Hunneman v. Grafton, 10 Met. 454, 459. The declaration in this action contains such a special count, and under it the plaintiffs are entitled to recover damages, which are to be assessed at the contract price, since the defendant cannot successfully dispute the full value of notes indorsed or signed by himself.

Exceptions sustained.

Peters, C. J., Virgin, Libbey, Foster and Whitehouse, JJ., concurred.  