The offer made by the defendant below for the purpose of effecting a settlement, was rejected by the plaintiff, and must therefore be laid out of the case.
The change which the defendant consented to make in the price to be paid for the timber, only modified the written contract in that particular. .In all other respects the agreement, and the rights of the parties under it, remained unaltered. The delivery of the whole quantity of timber, and by the specified time, continued, as they were before, to be conditions precedent to the plaintiff’s right to the price; except as to that portion which was payable on the delivery of each load, and that has been paid.
The contract afterwards underwent a further modification, by enlarging the time for the delivery of the timber. Although there was no express stipulation to that effect, *635Such an agreement may be implied from what took place after the first day of July—the time when the contract should have been fully executed on the part of the plaintiff. He continued to deliver timber after the day had passed, which the defendant received without objection. Payments were made and received on the contract. Both parties, therefore, may be regarded as having tacitly assented to an extension of the time for performance on the part of the plaintiff. If when the day arrived the defendant intended to insist on the default, and not allow the plaintiff to proceed to a completion of the delivery, he should have spoken at that time. Jewell v. Schroeppel, 4 Cowen, 564. The plaintiff on his part had no choice but to go on with the contract, or forfeit what he had done under it. Neither party can now set up that the contract was wholly rescinded by what took place after the first of July. The quantity and description of timber to be delivered, and the price to be paid—subject to all just allowances to the defendant for the default—remained untouched. Whatever foundation there might be for the defendant to insist that the contract was at an end, there was surely no ground for any such argument on the part of the plaintiff. All the wrong had been on his part. He refused in the first place to proceed with the contract without a large advance in price; and then made default in point of time. The most that he can ask is, that the original contract shall be deemed to have been modified in these two particulars—not wholly abandoned. To go further would be the height of injustice. Indeed the court below did not put the case upon the ground that the contract had been rescinded, nor did the counsel for the plaintiff assume that position on the argument in this court.
What then is this case ? The plaintiff agreed to deliver a large quantity of timber ; for which he was to be paid— ■except the part which he has already received—when the whole quantity should be delivered. He furnished a part of the timber, and then, without any excuse or apology whatever, stopped short; and now claims to recover for the timber actually delivered. The mere statement of the *636case furnishes a complete answer to the action. Courts have no dispensing power to absolve men from their legal engagements, nor can they make contracts for them. The delivery °f the timber was a condition precedent to the payment of the price ; and the plaintiff must first perform on his part before he has any ground of complaint against the defendant. This court has never held any other doctrine. I shall not go through with the cases—it will be enough to refer to a few of them. M'Millan v. Vanderlip, 12 Johns. Rep. 165. Jennings v. Camp, 13 id. 94. Ketcham v. Evertson, id. 359. Wood v. Edwards, 19 id. 205. Champlin v. Rowley, 13 Wendell, 258. Sickles v. Pattison, 14 id. 257.
The cases cited by the plaintiff’s counsel will not aid him. In Linningdale v. Livingston, 10 Johns. R. 36, the contract had been partially performed by the plaintiff in proper time, and after the day he offered to complete the work, but was prevented by the defendant. The court said that this put an end to the special contract, and the plaintiff might recover for the logs which had been delivered, under the general counts. In the case under consideration, the plaintiff has never offered to complete the performance of his contract, nor has he been prevented from doing so by any act of the defendant. Raymond v. Bearnard, 12 Johns. Rep. 274, turned on the same distinction. The plaintiff offered to. go on with the contract, but the defendant refused, on the ground that the plaintiff was in default. The court held that there was no longer any subsisting special agreement between the parties, and the plaintiff might recover back the money paid, under the common counts. In Dubois v. The D. & H. Canal Co., 4 Wendell, 285, the plaintiff had been prevented from performing the work in time by the act of the defendants, and it had, in fact, been performed, though after the day. It was also said that the special contract had been rescinded by the acts of the de-, fendants. But in this case, the plaintiff has neither performed on his part, nor is there any pretence that the defendant has done any act to put an end to the special agreement. The remarks of Sir James Mansfield, C. J., in *637Cooke v. Munstone, 4 B. & P. 351, have been cited and misapplied a hundred times. The decision itself proves nothing in favor of this action. The plaintiff had paid £2, 5s., as earnest money on a contract by which the defendant was to deliver 35 chaldrons of soil, and the defendant had wrongfully refused to deliver it. The plaintiff declared on the special agreement, and added the money counts. Although he clearly had a right of action, the court held that he could not recover on the special count, because there was a variance between it and the special agreement; and that he could not recover back the money paid under the general counts, because the special agreement was still in force. With great respect, I think the last branch of the decision was not well founded. The defendant, by his own wrongful act, had put it in the power of the plaintiff to sue for a breach of the special agreement, or to waive that right, and recover back the money paid. It did not lie with the defendant to object that the special contract was still in force after he had refused to perform it. It is, however, unnecessary to decide any thing on that point. It is enough that the case cannot aid the plaintiff The only case which favors this action is Oxendale v. Wetherell, 9 B. & C. 401, and it has already been held that this decision is not in accordance with the rule as settled in this state. Champlin v. Rowley, 13 Wendell, 258.
Some confusion has crept into the cases for the want of proper care in distinguishing between the right and the remedy—or in other words, between the cause of action and the mode of enforcing it. These are distinct considerations, and yet the language of judges, in relation to one branch of the subject, has frequently been quoted as an authority concerning the other. Where there is no dispute about the right of action, there may still be a question about the form of the remedy. One general rule in relation to special agreements for the performance of labor, delivery of materials, or the like, is, that so long as the contract continues executory, the plaintiff must declare specially ; but when it has been executed, he may declare generally—using only the appropriate common counts. This he may do although the *638special agreement was in writing. When the plaintiff has5 performe¿ on his part, the law raises a duty on the part of the defendant to pay the stipulated price ; and the plaintiff maf count either on this implied assumpsit, or on the original executory agreement. If, however, time was to be given the defendant for payment, the general indebitatus' count will not answer until the credit has expired ; and2 there may be cases where the mode of payment is- such that the common counts will not answer, although the plaintiff has performed on his part. Many of the rules on this subject are well stated in Lawes on Plead, in Assump. 4 to 8-Where the case is such that the plaintiff might recover on-the general count, it will be no objection that the declaration also ¡ contains a count on a special agreement; and if the plaintiff attempt to prove the special agreement, and fail-to do so, it will not prejudice his right to recover under the-general counts. Payne v. Bacomb, Dougl. 651. Tuttle v. Mayo, 7 Johns. R. 132. Robertson v. Lynch, 18 id. 351. These are all cases where the plaintiff has performed the agreement on his part. There is another class of cases,where there has been a part performance of a special contract, which is then abandoned by the mutual consent of the parties, or is rescinded by some wrong act on the part of the defendant. In such cases the plaintiff may resort to the appropriate common counts, and recover for his labor, materials, goods furnished, or money paid under the special agreement. But where the special contract is still subsisting, and no act has been done by one party which will authorize the other to consider it rescinded, the plaintiff cannot resort to the common counts. Clark v. Smith, 14 Johns. R. 326. There is a third class of cases, where the plaintiff may resort to the common counts, notwithstanding the work was done under a special agreement; as where the plaintiff contracts to build or do some other work for another, and the work, though actually performed, has not been done-within the stipulated time, or there has been some other departure from the terms of the contract. In such cases, although the plaintiff cannot recover on- the contract, he may sometimes count on a quantum meruit, and recover the value *639of the work and materials delivered to the defendant. Jennings v. Camp. 13 Johns. R. 94. Jewell v. Schroeppel, 4 Cowen, 264. 2 Stark. Ev. 97, 8. Bull. N. P. 139. Keck’s case, which is there cited, falls within this class of cases, and within the rule as laid down by Buller. The work had been done, the plaintiff had built the house, though not at the time and in the particular manner specified in the contract.
Whether we regard this as a question of pleading or one of principle, there is - no foundation for the present action. In all the cases where the plaintiff has been allowed to recover on the general counts for labor performed or materials furnished under a special contract, the work had either been actually executed, though with variation as to time or manner, or the special agreement had been rescinded—it was no longer in force. As a question of principle, it is impossible to uphold the action. The defendant has not only fully performed the agreement on his part, but he has done much more than could have been required of him. He has consented to an advance in price, and enlarged the time for the delivery of the timber. Neither before nor since the plaintiff’s default has he either done or said any thing to prevent the plaintiff from completing the execution of the contract. We have then the naked case of a man violating his own contract without cause, and then attempting to maintain an action against the injured party. To allow the experiment to succeed, would be both contrary to law and against good morals.
The following dissenting opinion was delivered :