
    Calvert v. Bowdoin.
    [June, 1791.]
    Money Furnished to Purchase Land — Failure to Purchase — Liability.—A. furnishes money to B. to purchase a tract of land for A. B. and C. If B. fails to • make the purchase, it is a breach of the contract, to be redressed by a suit upon the contract; and the right of action accrues from the failure to purchase.
    Pleading — Statute of Limitations — Finding of Jury. — If the act of limitations be pleaded, the jury ought to find that the defendant assumed within five years next before the suit was commenced; or the whole issue is not found, and a new trial will be awarded. ' . '
    Same-Variance between Evidence and Statement in Declaration — Effect.—If the evidence differs from the statement in the declaration, judgment of nonsuit will be given by the court of error; and the cause will not be sent back to the court below with a direction to call the plaintiff, or to instruct the jury that the evidence does not support the declaration.
    Upon the --day of-- — , 17 — , Bow-doin, as surviving partner of Phripp & Bowdoin, brought assumpsit against Calvert; and declared, 1, for .£104. 13. 6. specie had and received to the plaintiff’s use' — 2, for £1046. IS. paper currency equal to 218 £104. 13. 6. specie, as due to *the
    plaintiff upon insimul computassent. Plea, the act of limitations; and issue. Upon the trial of the cause, the defendant filed a bill of exceptions to the court’s opinion, stating that the only evidence offered by the plaintiff was an account containing the items of demand, which was supported by no other testimony than a receipt dated the 8th of February, 1779, purporting that the defendant had received, of the sum of £10,342. 10. to purchase the Currytuck estate, half for Phripp & Bow-doin; a fourth for John Holloway; and the other fourth for the defendant. That the defendant objected to the evidence, because more than five years had elapsed between the date of the receipt, and the emanation of the writ; and that the defendant prayed the court to instruct the jury, that the action was barred by the statute of limitations, and that the evidence was not sufficient ,in law to maintain the issue on the part of the plaintiff; but that the court affirmed to the jury, “That the plaintiff’s evidence was good in law,” without adding for what purpose. Verdict that the defendant did assume in manner and form as the plaintiff hath complained against him; and assesses the plaintiff’s damages to .£100. Judgment for the plaintiff accordingly ; and appeal by the defendant to this court.
    Duval for the appellant. The statute of limitations is a beneficial law, and ought to be favoured. The action was barred before the institution of the suit. It was a partnership transaction, and the evidence supports neither count of the declaration. Not the first, because it was a joint undertaking, and therefore could not be money had and received to this plaintiff’s use: not the second, because there is nothing to shew, that the parties ever accounted together.
    Baker, contra.
    The suspending act saves the case; for, if the times of suspension are taken out, there will be only four years and a fraction between the date when the action ^accrued, and the time of commencing the suit. Besides the defendant was a trustee, and could not claim the benefit of the act of limitations. Lord Hollis’s case, 2 Ventris. 34S. The money was received for a special purpose; and, until it was applied, continued the money of the plaintiff; but as the purchase was never made, it was money received to the plaintiff’s use, and supports the first count. There might possibly have been other circumstances, not stated in the bill of exceptions, which influenced the jury; and the court will intend every thing after verdict; especially, as the plea does not shew when the sale of the Currytuck estate took place, and that more than five years had actually intervened between the sale and the date of the writ.
    Marshall in reply.
    The bill of exceptions states, that there was no other evidence of the assumpsit than the receipt; and therefore it follows, that the claim was barred before the suit was brought; for the acts of suspension will not help the appellee, as they took out less time than was necessary to remove the bar. The defendant could not be considered as a trustee; for he was not a depositary, but a contractor stipulating to perform a certain act, and the failure entitled the plaintiff to a special action on the case founded on the breach, and not to a suit upon the supposed trust. The declaration not having referred to the document, nor stated the dates of the transactions, the defendant could only plead in general terms as he has done, and therefore no presumption in favour of the verdict should be made. The variance insisted on, by Mr. Duval, is material; for the evidence does not apply to either of the counts in the declaration. The verdict only finds that the defendant assumed modo et forma as the plaintiff has declared, and not that there was an assumpsit within five years before the date of the writ; and therefore the whole issue is not found by the jury.
    Cur. adv. vult.
    
      
      See monographic notes on “Contracts” appended to Enders v. Board of Public Works, 1 Gratt. 364, and “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
   *PENDLETON, President,

deliv-

ered the resolution of the court as follows:

It is manifest, from the evidence in the record, that the act of limitations had barred the action before the suit was commenced ; for, if the time embraced in the suspending- acts be stricken out, there will still be more than five years between the date of the breach, and that of the writ. The verdict only finds that the defendant assumed in manner and form as the plaintiff has declared, and not that he assumed within five years next before the suit was commenced, which was the true point in issue. The whole issue therefore has not been found; and consequently there must have been a new trial, if the cause had depended upon that point.

But the court is of opinion, that a new trial ought not, under the circumstances, to be awarded in order to supply the deficiency in the verdict. For the evidence does not support either of the counts in the declaration, as the sums, the sort of money, and the use to which it was to be applied, contained in the receipt, differ from the statement made in the declaration ; and therefore it is plain, that such evidence never can entitle the plaintiff to a verdict upon this declaration; and, as it is not pretended that he has any other, it would be a work of supere'frogation to send it back again, in order to have the plaintiff called, or the jury instructed that the evidence does not support the declaration.

The judgment therefore is to be reversed, and judgment of nonsuit entered.  