Hancock v. Ross

• Decision Date: 31 July 1855
• Docket Number: No. 43.,43.
• Citation: 18 Ga. 364
• Parties: Thomas B. Hancock, plaintiff in error. vs. Cyrus Ross, defendant in error.
• Court: Georgia Supreme Court

18 Ga. 364

Thomas B. Hancock, plaintiff in error. vs. Cyrus Ross, defendant in error.

No. 43.

Supreme Court of the State of Georgia

JULY TERM, 1855.

Assumpsit, &c. in Marion Superior Court. Tried before Judge Worrell, February Term, 1855.

This was an action of assumpsit, by Hancock against Ross, for the price of a buggy and harness. At the trial, plaintiff proposed to prove, by A. D. Chambliss, that " defendant offered him, as agent for plaintiff, $155 for the buggy and harness, and witness agreed to take it if he could do no better. Afterwards, witness met him and told him he had brought him the buggy. Defendant said he had not the money; wit-ness proposed to wait till Christmas, by paying interest; defendant said he had no way of giving the note; witness told him that he would leave the buggy at his house, and he could have the dash-board mended, and when witness came back he would take the note and pay for the mending. To this, defendant agreed."

To this testimony, Counsel for defendant objected, on the ground, that it disclosed a special contract, and did not support the action. The Court sustained the objection, and this decision is assigned as error.

Blandford; Oliver, for plaintiff in error.

Pryor, for defendant in error.

By the Court.—Starnes, J. delivering the opinion.

The rule, that where there is an express contract between the parties, they cannot resort to an implied one, is so clear, and has prevailed so long, that it is said to have been reduced to an axiom of law.

But it is also very well settled, that where the terms of the special agreement have been performed on one side, and nothing is to be done on the other but make a money payment, such payment may be enforced by indebitatus assumpsit. (Cooke vs. Munstone, 1 B. & P.354, B. N. P. 139. Alcorne vs. Westerbrooke, 1 Wils. 117. Bianchi vs. Nash, 1 M. & W. 545. See, also, notes to Cutter vs. Powell, 2 Smith's L. C. 1. Clark vs. Fairchild, 22 Wend. 517. Bank of Columb. vs. Patterson, 7 Cranch 299.)

Let us apply these principles to the case before us. There was an express agreement between the parties; and it appears, that all that was for the advantage of the defendant, which the plaintiff, by his agent, had undertaken to perform, was performed by him. he agreed to deliver the buggy for the price stipulated, and to call afterwards and pay the person whom the defendant might get to mend the dash-board, and to receive a note for the purchase money. It is true that the record does not show that any payment was ever made by the plaintiff for the mending of the buggy, or that he ever called for the note. But it does not appear that this was made a condition precedent in the...