Draper v. Edward T. Randolph & Co. , 4 Del. 454 ( 1847 )

Judge Harrington,

charged: 1. That if the plaintiff had proved his contract as laid, for the raising and delivery of such ore as he did raise from Gum Branch, whether good or bad, he was entitled to recover; because though it be an executory contract, not fully performed, the plaintiff was entitled to consider it at an end by the defendants’ refusal to comply with their part of it; and to recover on the general counts, apart from the contract for what he had done under it. (Cutter vs. Powell, 44 Law Lib. 14, note.)

2. That if the contract proved was, as contended by the defendant, viz., a substitution of the Hazzard contract, for the delivery of “ good, clean, stone loam, and washed seed ore,” the plaintiff was not entitled to recover any thing: not upon the special contract, for a different one would have been proved; and not upon the common counts for the law never raises an implied contract when an express one is proved. (2 Greenl. Ev. 78, § 103; 2 Harr. Rep. 488.)

3. If neither the contract set up by the plaintiff nor that contended for by the defendants was proved, and no special contract was proved, the plaintiff was entitled to recover on the common counts for the twenty-seven tons of ore delivered and accepted by the defendants, and not paid for, as for goods sold and delivered; but he was not entitled recover for the ore not accepted, without proof that it was raised and forwarded at the defendants’ request.

4. That if the plaintiff had proved a special contract as laid, and a part execution of it, not strictly within its terms, as by the delivery of ore of inferior quality; if such ore had been accepted by the defendants, the plaintiff would be entitled to recover for such part performance, subject to a deduction of the damages which defendants sustained by the non-performance of the contract strictly and entirely. This is what we understand by recouping damages in an action of assumpsit. (2 Greenl. Ev. 80 § 104; 14 Wend. Rep. 257.)

The plaintiff had a verdict for $447 20.