Concuring: — The rule laid down in Sanderson v. Hagan, 7 Fla. 318, to the effect that where there is a special contract, plaintiff cannot recover under the common counts expresses, I think, the general rule applicable to the facts of that case, but not the exceptions. *388The plaintiffs own witness Daniel not only testified that there was a special contract with respect to the quality of the logs to be delivered, but also that the logs which were delivered by the plaintiffs were refused by the defendants because they did not come up to the contract, who claimed that the plaintiffs must fulfill their contract. The facts of this case are entirely different, for the lumber was delivered by the plaintiffs and the greater part a1 least accepted by the defendants, and when there has been an acceptance by the defendants of a part of the articles contracted to be delivered, and they have had the benefit of them, their value according to the weight of authority can be recovered under the genral assumpsit. 2 Smith’s Leading Cases (9th Ed.) pp. 1229, 1230; Ship-man’s Common Law Pleadings pp. 22, 23. In such a case the special contract may be evidence of the. damages. Dermott v. Jones, 2 Wall. 1; Perkins v. Hart 11 Wheat. 237; When a contract has been fully executed, the price agreed to be paid can be recovered under general assumpsit, and the contract is evidence of the damages. Authorities above cited, and Bank of Columbia v. Patterson’s Adm’r, 7 Cranch 299; Williams v. Sherman, 7 Wénd (N. Y.) 109).