The opinion of the Court was delivered by
Williams, C. J.-In this case there is a motion in arrest for the insufficiency of the declaration, which was overruled by the county court. Exceptions were also taken to the charge of the court, on the trial before the jury. The declaration was considered and treated as in assumpsit, as appears by the exceptions. But, on examination, it appears to have been debt, and, as such, is not liable to the objections which have been made, to wit, that it was a promise on a past consideration, and that the declaration omitted the Words, “ at defendants’ special instance and request.” The declaration in the case of Emery v. Fell, 2 T. R. 28; is very similar to the one under consideration, excepting that this omits the words, “ at their special instance and request.” but these we do not consider material, as it is stated that the goods were sold and delivered to the defendants by the plaintiff, and the indebtedness arises from the sale.
On the trial, it appeared that the testimony tended to show that the plaintiff, on the 16th of January, 1836, went with the salts, for which the action was brought, to the defendants’ potash, and had them weighed, saying to one of the defendants, that, as he had brought the salts before they were due, he must give him good weight, — that, after-wards, on the same day, at the defendants’ store, on the defendants’ asking him what he was going to do with the salts, he replied, he thought he should have them put on the contract. The contract was then brought forward. The plaintiff, on examining it, and finding it read for gross weight, re*519fused to have them applied upon it. Notwithstanding-this refusal, the defendants applied them on the contract, and refused to apply them or account for them in any other way. On these facts the plaintiff claimed a verdict, and the court charged the jury, that if the salts were weighed at the potash, subject to the plaintiff’s direction, and, before any disposition had been made of them, he concluded, not to have them applied on the contract, and so informed the defendants, and, notwithstanding this, defendants insisted upon applying them on the contract, and refused to account for them in any other way, the plaintiff would be entitled to recover.
To maintain this action, there must have been some contract express or implied, by which the defendants were under obligation to pay the plaintiff for these salts, and we cannot discover from the case, as presented, any such contract,
If it was in the power of the plaintiff to control the salts before delivery, as it unquestionably was, it was equally in the power of the defendants to refuse to receive them, in any other way than as payment of the written contract. If the parties were not agreed as to the delivery or disposition of the salts, they remained the property of the plaintiff. He could carry them away or dispose of them as he thought proper. But if he left them with the defendants, after their explicit declaration that they would not receive them on the contract, and would not account for them in any other way, the obvious inference is, that he left them or delivered them according to his first declared intention, in payment of the' contract. The defendants were at liberty to put that construction upon his thus leaving the salts in their possession, and cannot be made debtors therefor. If the contract was not in reality for gross weight, or if there is any mistake in it, it can be ascertained and settled when it is put in suit. The plaintiff cannot by his own act make the defendants debtors, against their will. He was under no obligation to deliver the salts before they were due, nor could he have been compelled to deliver them in payment. Nor were the defendants obliged to receive them and account for them, in any other way than in payment. If the parties disagreed as to the application, before they were delivered, the property remained with the plaintiff, and he could make such disposition of *520it as he pleased, unless prevented from so doing by the ‡ > direct interference of the defendants.
The judgment of reversed* the county court must, therefore, be