
    Lorton vs. Agnew.
    The court will not permit the plff. to recover on the common counts- unless there is sufficient evidence to wairant such a recovery, independent of any special agreement.
    Where a contract has been rescinded, money paid thereon may be recovered on the common counts.
    Indeb. Assumpsit by Agnew vs. Lorton on the money counts for money lent and advanced, and for money paid, &e., on a contract by which Lorton was to convey a claim to the public lands. Agnew was unable to pay the whole sum, and the contract was rescinded. By agreement submitted to arbitrators, who awarded that Lorton should pay Agnew $135. Plea geni, issue, and notice of set off. Verdict for plaintiff $139,40, and judgment thereon.
    A more particular statement of the case is contained in the bill of exceptions, as follows:
    Be it remembered, that on the trial of this cause it appeared in evidence that Agnew had purchased from Lorton a claim and improvements thereon, sometime in November 1837. That he took and continued in possession of the same up to 17th Nov. 1838, — that he had paid to Lorton one hundred and thirty-five dollars in cash, and one yoke of cattle valued at fifty-five dollars, — that sometime previous to the 17th Nov. aforesaid he despaired of paying the balance of the purchase money, and being unwilling to lose what he had paid, and the labor he had expended, agreed with Lorton (who consented) to leave it to men selected by them to say on what terms he should surrender the claim to Lorton, and the contract of sale be abandoned, — that these men decided that Lorton should have immediate possession of the farm, except the house which Agnew was to have the use of until Nov. 1st 1838, — and that Agnew accordingly delivered possession — that Lorton should have half the crops raised on the place by Agnew, and that Lorton should pay Agnew $135 in twelve months: To this decision both consented, and Lorton promised to pay Agnew one hundred sad thirty-five dollars accordingly, in twelve months. Whereupon defendant’s counsel asked the court to instruct the jury that the plaintiff could not recover unaer the count for money paid, laid out and expended, which instruction was allowed. The defendant’s counsel then asked the court to instruct the jury that the plaintiff could not recover the $185 under the count for money lent and advanced, which instruction the court refused, but instructed the jury that under that count, in connection with the bill of particulars, they could lind for the plff. on the foregoing evidence, provided they found from the evidence that the original contract had been rescinded. Defendant’s counsel further asked the court to instruct the jury that where there is an express subsisting promise or agreement to pay money, the plaintiff cannot recover the money upon the common money counts, by proving such express promises, but must sue on the express promise or agreement, which instruction the court refused. To which, &c.
    Henry W. Starr and Grimes, for plff. in error.
    Rorer and Browning, for dft.
    For the plff- The arbitration and award, and the express promise under that award to comply with it, annulled the old agreement, and if Agnew could recover at all of Lorton it must be on the express promise. There could be no recovery here on the money couuis. Cowens Treat. 80, 81. To sustain this action there must be an actual loan of money. A loan of stock will not do. 1 Ch. PI. 388 — Swift’s Big. 1, 395 — 4 Jhn. Com. Law 181. Where the special agreement is open, plff. cannot proceed upon the common counts 1 Johns. Big. 65 — 12 Johns. R. 274, Raymond <Sf al. vs: Barnard — Q Harris £f Johnson 81 — Chitty on Con. 175 — J1nthon’s Am. Free. 89 a.
    
    For the defendant it was contended, 1st. That where there has been an express contract' between the parties, and that has been rescinded, the money paid may be recovered back by action of indeb. assumpsit on the common money counts. Com. on Con. 319 — 1 Term R. 333 — 3 Johns. Big. 2d — 12 Johns. R. 274.
    2d. In this case the record shows that there was a bill of particulars, but the record does not embody that bill of particulars or show in what it consisted. The charge of the court as is shown from the bill of exceptions in the record here, was predicated on that bill of particulars in connection with the declaration. In the absence of such bill of particulars the court will not presume error in the court below, but the contrary, as the ground of their opinion is not here shown. 3 Ball. R. 184 — 1 Cond. R. 94, where it is said “It is not a cause of reversal that the record is insufficient to show the ground of the decree” of the court below. Also 3 Ball. R. 336 — 1 Cond. R. 154. “ Where
    the evidence is sent up from the Circuit Court, but no statement of facts by the court, the decree of the court below was affirmed, as no errors could be shown on the record.”
    
    Starr, for the plff, in reply, cited Ch. on Con. 188. Contracts cannot be rescinded unless the parties oan be restored to their original situation. 7 Johns. R. 132. He may recover on the common counts notwithstanding the special agreement, provided that without such agreement he could so have recovered. 13 Johns. R. 94 — lb. 56 Wilt vs. Ogden — 19 Johns. R. 205 — 14 Johns. R. 306. 18 Johns. R. 169 — 1 Swift’s Big. 792 — Jacob’s Law Bic. tit. error.
    
   By the Court.

Mason, Ch. Jus.

The plaintiff below brought an action of assumpsit against the defendant Lorton, and complained against him in the common counts for money lent and advanced, and for money paid, laid out and expended. It appears also that there was a bill of particulars of the plaintiff’s demand, but which does not appear to have been sent up in the transcript of the record from the District Court.

On the trial it appeared that Agnew had purchased a “claim” of Lorton, which he took possession of and occupied for about one year — that he had paid therefor $135 in cash, and a yoke of oxen valued at $55 — that finally being unable to pay the balance, and unwilling tc lose what money and labor he had expended, he agreed with Lorton to leave it to certain individuals to determine upon what terms the claim should be surrendered, and the contract of sale abandoned. These men decided among other things that Lorton should pay Agnew $135 in twelve months. Both parties consented to this arrangement, and Lor-ton promised to pay the amount accordingly.

Upon this state of facts the -defendant’s attorneys asked the court to instruct the jury that the plaintiff could not recover the $135 on the count for money lent and advanced, which instruction the court refused to give, but directed -the jury that under this Count taken in connection with the bill of particulars, they -could find for the plaintiff, provided they were satisfied from the evidence that the original contract had been rescinded. They further asked the court to instruct the jury that where there is an express subsisting promise or agreement to pay money, the plaintiff cannot recover the money upon the common money counts by proving such express promise, but must sue on that promise — which instruction was also denied. To both of which the defendant excepted. A verdict was found for the plaintiff, and judgment rendered thereon : for the reversal of which a writ of error is now brought to this court.

As it is incumbent on the plaintiff in error to show affirmatively that there was error below in order to obtain a reversal, and inasmuch as the bill of particulars is referred to in the record, and not contained in Ihe transcript, the proper enquiry will be whether under the count for money ‘■'lent and advanced,” coupled with any possible bill of particulars, the plaintiff below could have recovered. Perhaps under such circumstances any evidence would be admissible which could be admitted under the count for “money had and received.” Such a declaration though defective in form, might at least be sufficient in substance to prevent a reversal in this court in any case where all the common counts would have sufficed. The great question in this case therefore, is whether the plaintiff below was entitled to recover on the common counts, or whether he must have declared specially. From the circumstances of the case there is nothing to create the presumption that Agnew by abandoning the original contract could compel Lorton to refund any of the money paid thereon. There was no legal liability upon Lorton to pay any money except from his-promises and undertakings then and subsequently made. The circumstances were such as might form the consideration for a promise, but the right of action, resulted entirely from his special agreement.

The rule laid down in Sutler vs. Mays, 7 Johnson's Rep., 132, and followed in the case of Dubois vs. Delaware & Hudson Canal Co., Wendell, 285, would not permit the plaintiff to recover on the common counts unless there was sufficient evidence to warrant such a recovery independent of the special agreement. That rule applied to this case would be decisive and fatal to the action below, and we find no authority for establishing a rule irreconcileable with it. The rule in all respects seems to be just and salutary, and we feel inolined to adopt it.

It is true that where a contract has been rescinded, money paid thereon may be recovered under the common counts. This'contract however does not seem to have been absolutely rescinded.- Although the jury found.this tobe the case, still the matter involves a question of law, and from the facts detailed in the bill of exceptions, we are inclined to think the grounds of the plaintiff’s action below resulted not from the abrogation of the old contract but from the creation of a new one.

The judgment below will therefore be set aside and a new trial awarded.  