ON MOTION FOR REHEARING.
Gill, J.It is contended on this motion for, rehearing that we overlooked a fatal objection made as to the nature of the action, brought by the plaintiff. It is claimed that “the real cause of action was the failure of the defendant company to execute the notes *449specified in the contract, and the form of action should have been for breach of contract, instead of on the contract and quantum meruit.” This position is grounded on the words of the contract as set out in the answer, to the effect that the compensation for plaintiff’s work was to be a certain sum of money, payable as follows : When the work, etc., is completed * * * defendant was to sign and deliver to plaintiff three notes of equal value, each bearing interest at eight per cent, of six, twelve and eighteen months from date of completion of work. It is asserted that this is an action of assumpsit for goods, etc., and that such an action cannot be maintained until the eighteen months have expired, whereas the suit was commenced within a month after the completion of the work.
There is more than one reason why this super-technical argument will not avail here. In the first place the defendants’ answer practically admits the consideration for the work was to be paid in money. In its petition the plaintiff alleges that for the work done, etc., “the said defendants agreed to pay plaintiff the sum of $1,030.” The answer admits “ that for and in consideration of, which these defendants promised to pay the plaintiff the sum of $1,030.”' It is true, however, that, in the subsequent count of the answer in the nature of an alleged counterclaim for dam i ges against plaintiff for alleged defective work, defendants set up the terms of the written contract in which it is stipulated that the work was to be paid for in notes. However, the allegations of the- answer proper make no such charge. The whole tenor and effect of the answer was to declare wherein the- plaintiff had failed to do the work in the manner agreed and provided for in the contract. So then, for this reason alone, the court properly refused defendants’ motion for judgment on the pleadings.
Again, it may be well doubted if counsel’s construction of the contract is the proper one. It seems *450assumed that the contract was for goods and labor furnished on an absolute credit of six, twelve and eighteen months. It was rather a promise of credit on condition that certain securities were furnished by the ■defendant. The $1,030 might have been paid in note signed by the “Electric Springs Company,” but no «credit was provided for unless such securities were given. O'Conner v. Dingley, 26 Cal. 39. By the terms of this .agreement, then, defendants had the right to an extension of time for six, twelve and eighteen months ■ on giving the notes provided for ; but failing and refusing in this, jffaintiff's right of action accrued immediately. Kronenberger v. Binz, 56 Mo. 121. So then we held in the original opinion in this case that there was no extension of time so as to avoid the plaintiff’s right to a mechanics’ lien, because defendants failed and refused to give the notes which were a con- ■ dition for such extension of credit.
But now conceding the effect of this provision in the contract to be as claimed, and that it was a sale of goods on time, is plaintiff denied the right to prosecute this action? In this connection we are cited to numerous cases under the common law, of which Mussen v. Price, 4 East, is the leading, and which last case decides “ where goods were sold upon the contract that the ■ vendee was to pay for them in three months by bill of ■ two months ; that the contract was for a credit of five ■ months, and that the action of assumpsit for goods sold : and delivered could not be brought at the end of three , months upon the neglect of the vendee to give his bill .at two months.” Or as more generally expressed in .another leading case, “ when goods are sold to be paid .for by note or bill payable at a future day, and the mote or bill is not given, the .vendor cannot maintain <msumpsit on the general count for goods sold and 'delivered, until the credit has expired.” Hannas v. Mills, 21 Wend. 92. However, we might as well say .here that all these authorities agree that the vendor *451may, on refusal of the vendee to give the notes, bring his action immediately for a breach of the special agreement. “The right of action,” says Bronson, J., in the case last cited, “is as perfect on a neglect or refusal to' give the note or bill as it can be after the credit has expired. The only difference between suing at the one time or the other relates to the form of the remedy ; in the one case the plaintiff must declare specially, — in the other he may declare generally. The remedy itself is the same in both cases. The damages are the price of the goods.” Now when it is remembered that in the word and spirit of our code we have nothing to do with these old forms of procedure; that we have “but one form of action for the enforcement or protection of private rights, etc., which shall be denominated a civil action;” and that our pleadings (whether petition or answer) shall'be sufficient if they state in a plain and concise manner the facts constituting the cause of action or defense, etc. (R. S. 1879, secs. 3461, 3511, 3321, etc.) we find ourselves relieved of any needed discussion of these intricacies in pleading which served more as pitfalls than as aids to a just administration of the law. It is enough under our system that such facts appear as justify a judgment the one way or the other. We have no concern as to the mere form of the pleading. Kansas City Nat. Bank v. Landis, 34 Mo. App. 440. The facts alleged and proved in this case are under the law sufficient to warrant a recovery. It makes no difference whether it be called an action of assumpsit, or a special action on the contract.
The motion is overruled.