Wilson’s Red Book, 3
Court of Common Pleas of Delaware.
1793.
Page 8
Case. First count that defendant sold plaintiff and gave him his alienation bond for eighty-five [acres] at five dollars per acre, for which plaintiff paid him and received a deed, but there is a deficiency of acres to the value of £37.10.0. Second, money had and received N.B. This declaration was drawn in short at the trial etc. Plaintiff produced at the trial the alienation bond to show the quantity contracted for and proved the rate was five dollars per acre. Defendant moved for a nonsuit because plaintiff’s remedy was upon the bond of conveyance, and assumpsit will not lie when the debt is due by specialty and cited 1 Morg. Ess. 333, 2 Str. 1027, 1 Esp.N.P. 95 vide Doct.Pl. 42. Plaintiff urged that the bond for conveyance was complied with, and showed the deed to prove the contract fulfilled, that this action is brought for a second implied contract, that the money was paid by mistake and therefore recoverable, Bull.N.P. 128, Cowp. 290, 565, 1 Bl.R. 219, [1] Dall. 428, 429, 4 Bl.Comm. 442, 2 Burr. 1066, Cowp. 197, Bull.N.P. 139, Pow.Con. 217, and insisted that where a debt is due in justice, assumpsit, like a bill in equity, lies for the recovery of it.
Defendant replied that there was only one contract and plaintiff’s remedy for that was on the bond, but if there was an implied second contract the words, “eighty-five acres more or less,” in the deed, Co.Litt. 212.b, showed that the contract was complied with, and also that there was no payment by mistake.
But the Court refused the motion and let the evidence go to the jury, who found a verdict for the defendant.
Peery and Miller for plaintiff.
Bassett, Wilson and Vining for defendant.