Pusey And Jones Company v. Dodge

• Decision Date: 18 December 1900
• Citation: 19 Del. 63,49 A. 248
• Court: Delaware Superior Court
• Parties: THE PUSEY and JONES COMPANY, a corporation of the State of Delaware, v. ARTHUR P. DODGE

49 A. 248

19 Del. 63

THE PUSEY and JONES COMPANY, a corporation of the State of Delaware, v. ARTHUR P. DODGE

Superior Court of Delaware, New Castle County

December 18, 1900

Superior Court, New Castle County, November Term, 1900.

ACTION OF ASSUMPIT on a book account. Bill of particulars filed. The narr contained counts for goods, wares and merchandise by plaintiff to defendant sold and delivered; for work and labor by the plaintiff done and performed in the business of defendant; for money advanced, paid and expended for the use of defendant; for money had and received by defendant for the use of plaintiff; also an account stated. The plaintiff claimed $ 731.49 with interest from October 1, 1898 to October 18, 1900, for repairing and adding certain improvements to a motor car owned by the defendant.

The pleas were non assumpsit and payment.

Verdict for plaintiff for $ 829.99.

Benjamin Nields for plaintiff.

George Lodge for defendant.

LORE C. J., and SPRUANCE and GRUBB, J. J., sitting.

OPINION

SPRUANCE, J., charging the jury:

Gentlemen of the jury:--We do not think it necessary to charge you except as to the questions of law in respect to which our instructions have been asked.

We are requested by the defendant's counsel to charge you, that the plaintiff can not recover in this action for the items charged in his bill of particulars under date of July 21 viz.: 1 vertical boiler with tubes, safety valve, blow cock, &c. and 1 tank $ 335, because the evidence is that these articles were furnished by the plaintiff to the defendant under a special contract at the stipulated price of $ 335 and that to entitle the plaintiff to recover he should have sued upon this special contract, and not, as he has done, upon the common counts for goods sold and delivered, etc.

We can not so charge.

The rule is, that where a special contract for the sale and delivery of goods has been fully performed on the part of the seller, and nothing remains to be done by him, and the contract price is due and unpaid, he may sue for the price of the goods, either upon the special contract, or upon the common count for goods sold and delivered.

The law upon this subject is clearly stated by the Court in Hurlock vs. Murphy, et al., 7 Del. 550, 2 Houst. 550, as follows:

"The rules of law on the subject are that so long as the special contract continues executory, the plaintiff must declare specially; but when it has been performed and executed on his part, and nothing remains to be done but the payment of the price in money by the defendant, which is nothing more than the law would imply against him, the plaintiff may declare generally, or in the common counts upon the implied promise, or he may declare specially on the original contract and express promise, at his election. If the mode of payment was to be any other than in money, the count must be on the special or original contract. And if it was to be in money, and a term of credit was allowed, the action, though on the common counts, must not be brought until the term of credit has expired. This election to sue upon the common counts, where there is a special agreement, applies only to cases where the contract has been fully performed by the plaintiff."

We therefore instruct you, that if you are satisfied from the evidence, that these articles were furnished by the plaintiff to the defendant under a special contract--at the stipulated price of $ 335--and that the plaintiff has fully performed and executed its part of the contract, and that the contract price is due and unpaid, the plaintiff is entitled to recover said price under the common...