Page:Federal Reporter, 1st Series, Volume 6.djvu/871

 DAWES V, PEEBLEB. 859 �•claim, that the suit having been brought upon the common counts for goods sold and delivered, and not upon the special contract, there can be no recovery in the case. �The law is well settled that where goods are sold under a special contract, whioh bas not been fully complied with by the plaintiff, — in otherwords, if it remain executory, — he must fiue upon the contract. But if the contiact bas been exe- cuted upon bis part, and nothing remains but the payment of the agreed priee by the defendant, the plaintiff may bring his action as for goods sold and delivered, declaring upon the common counts, or he may bring it upon the special contract. But if the sale by the terms of the special contract be upon credit, he cannot maintain his action upon the common counts, as for goods sold and delivered, until after the term of credit bas expired. And, again, if the contract bas been partly performed and bas been abandoned by mutual consent, or rescinded or become extinct by the act of the defendant, the plaintiff may bring his action upon the common counts for what he bas done under the special agreement; or if that which had been done by the plaintiff under the special agree- ment had not been performed in the stipulated time or man- ner, but was beneficiai to the defendant and was accepted and enjoyed by him, the plaintiff may declare upon the com- mon counts, and recover the reasonable value of the benefit the defendant bas derived from what he had done. 2 Greenl. on Ev. 104; Cutter v. Powell, 2 Smith's Lead. Cas. 17 and notes; Lyon y. Bertram, 20 How. 149. If, therefore, the evidence shows the existence of either of these, the plain- tiff may maintain the action in this form. �It is also contended by the plaintiff that, under the issue as made, the defendant cannot be permitted to show the spe- cial contract, or that the goods were not as represented. �The answer is subatantially the general issue, and, in striot- ness, operates only as a deniai of the matters alleged in the petition ; but this strictness has been so far relaxed that at present, under the general issue in assumpsit upon the com- mon counts, the defendant may show that upon almost any ground he was under no legal obligation to the plaintiff for the ��� �