This case comes before the éonrt on a writ of error, to the common pleas of Orange County ; and the errors complained of arise out of a bill of exceptions tendered at the. trial. The declaration contains several counts on a special contract, and also the common money counts. Upon the trial, the plaintiff below failed, in the opinion of the court, in supporting the special contract, but they allowed him to recover back the money advanced at the time the contract was made. The *276ground upon which tile plaintiff failed |n recovering on thp special contract, was, that he did not call for the delivery of the whiskey within the time limited by the contract; and when he did calí, and demand tile same, the defendants refused to deliver it, because the demand was not made in season. Thus, the defendants, by their own act, defeated a performance of the contract- There’is, therefore, no special agreement subsisting between the parties ; but the same has been put an end to by the election of the defendants. ' If the special agreement was in force, the plaintiff could not resort to the general counts. But the defendants themselves refusing to carry into effect the ¡contract, they ought not to be permitted to. set it up as the preiext for holding the money advancfed. If the contract is rescirided in part, it must be iñ toto ; and the plaintiff’s right to recover back the money paid, is undeniable, (1 Term Rep. 133. 1 Bos. & Pull. N. S. 354. 5 Johns. Rep. 87. 7 Johns. Rep. 132.) No demand, pf the money was necessary, before bringing thé action; nor did the tender set up extinguish the demand; the only effect of such tender is- to preclude any claim for interest. . The judgment of the court below must accordingly bp affirmed. , ,
Judgment affirmed.