The principal contention in the trial court was, as to whether appellants guaranteed a sale of the blankets, as claimed by appellee, at a price that should net him forty-eight cents, or whether the blankets were to be sold by appellants, as claimed by them, on commission, for the best price they could get. On this question the evidence was conflicting, scrrd the jury having found for appellee, we must assume, for the purpose of the present appeal, that they adopted his theory of the case. At forty-eight cents per blanket, the two drafts for $2,500 and $1,500, respectively, drawn by appellee on appellants, were more than paid by the sum of $179, the amount found by the jury in appellee’s favor. The first question, therefore, to be considered, is whether appellee was entitled to judgment for such balance, under his plea of set-off.
The plea contains the usual averments of the common counts in a declaration in indebitatus assumpsit, for goods sold and delivered, materials furnished, money had and received, money due on an account stated, etc. Under this plea appellee- seeks to recover damages for the breach of a special contract, the substance of which is as stated above.
. The general rule is that the common counts can not be resorted to when there is a special contract, and the breach of the contract is the gravamen of the action. In such cases the plaintiff must declare specially. But where the contract has been completely executed, so that only a duty to pay the money remains, a recovery may be had under the common counts in indebitatus assumpsit. Russell v. Gillmore, 54 Ill. 149; 1 Chit. Pl. 340; Perkins v. Hart, 11 Wheat. 237; Jewell v. Schroeppel, 4 Cow. 564; 2 Phil. Ev. 83, in notes; 2 Greenl. Ev. § 104. If the blankets had been sold at the guaranteed price, leaving nothing to be done but the payment of the money, resort might have been had to the common counts. There is no sufficient ground in the evidence for claiming that the blankets were sold to appellants. Indeed, such is not appellee’s theory of the case. His position is that the blankets were shipped to -appellants under a contract that they were to be sold by them at a price that should be sufficient to net appellee forty-eight cents, appellants guaranteeing that they should be so sold. The claim is not to enforce payment of moneys actually received by appellants on a sale of the good?s but to compel them to respond in damages for the amount appellee lost by reason of their breach of the contract. We think appellee should have advised them by a special plea of the grounds of such claim, and that it was not admissible under the common counts.
The court, against the objection and exceptions of appellants, admitted in evidence the testimony of appellee, detailing a conversation had by him with appellant Rollins, as to his efforts to get appellants to compromise or submit their differences to arbitration, saying, among other things, that if he owed them a dollar he wanted to pay it, and pay it quick; that he had always paid every dollar he owed, but that he felt he ought to do what lie could to protect himself in this matter, and that he could not willingly pay more than what was right according to their agreement; that he appealed to him, and begged him to submit the matter to arbitration; that Rollins expressed his surprise at the position of affairs but said he had had trouble with his partners and could not interfere. The court, also, against the objection of appellants, admitted in evidence letters written by appellee to appellants in relation to attempted compromises, and containing charges of unfairness, offers to submit to arbitration, etc. This testimony did not tend to prove or disprove any issue in the case, and was clearly inadmissible. Its manifest tendency was to prejudice the minds of the jury against appellants and in favor of appellee. Moreover, it was not the admissions of his adversary, but was appellee’s own statement and declarations, made long after the difficulties between the parties arose; nor was it any part of the res gestae of the original transaction. It does not need the citation of authorities to show that the declarations of a party made after the transaction is closed, and which are merely a recital of the transaction, such as the party then chooses to give, and especially, offers by him to compromise, can not be used by him as evidence in his own favor.
For the errors indicated, the judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.