By the Court.
Mason, Ch. Jus.The plaintiff below brought an action of assumpsit against the defendant Lorton, and complained against him in the *59common counts for money lent and advanced, and for money paid, laid out and expended. It appears also that there was a bill of particulars of the plaintiff’s demand, but which does not appear to have been sent up in the transcript of the record from the District Court.
On the trial it appeared that Agnew had purchased a “claim” of Lorton, which he took possession of and occupied for about one year — that he had paid therefor $135 in cash, and a yoke of oxen valued at $55 — that finally being unable to pay the balance, and unwilling tc lose what money and labor he had expended, he agreed with Lorton to leave it to certain individuals to determine upon what terms the claim should be surrendered, and the contract of sale abandoned. These men decided among other things that Lorton should pay Agnew $135 in twelve months. Both parties consented to this arrangement, and Lor-ton promised to pay the amount accordingly.
Upon this state of facts the -defendant’s attorneys asked the court to instruct the jury that the plaintiff could not recover the $135 on the count for money lent and advanced, which instruction the court refused to give, but directed -the jury that under this Count taken in connection with the bill of particulars, they -could find for the plaintiff, provided they were satisfied from the evidence that the original contract had been rescinded. They further asked the court to instruct the jury that where there is an express subsisting promise or agreement to pay money, the plaintiff cannot recover the money upon the common money counts by proving such express promise, but must sue on that promise — which instruction was also denied. To both of which the defendant excepted. A verdict was found for the plaintiff, and judgment rendered thereon : for the reversal of which a writ of error is now brought to this court.
As it is incumbent on the plaintiff in error to show affirmatively that there was error below in order to obtain a reversal, and inasmuch as the bill of particulars is referred to in the record, and not contained in Ihe transcript, the proper enquiry will be whether under the count for money ‘■'lent and advanced,” coupled with any possible bill of particulars, the plaintiff below could have recovered. Perhaps under such circumstances any evidence would be admissible which could be admitted under the count for “money had and received.” Such a declaration though defective in form, might at least be sufficient in substance to prevent a reversal in this court in any case where all the common counts would have sufficed. The great question in this case therefore, is whether the plaintiff below was entitled to recover on the common counts, or whether he must have declared specially. From the circumstances of the case there is nothing to create the presumption that Agnew by abandoning the original contract could compel Lorton to refund any of the money paid thereon. There was no legal liability upon Lorton to pay any money except from his-promises and undertakings then and subsequently made. The circumstances were such as might form the consideration for a promise, but the right of action, resulted entirely from his special agreement.
The rule laid down in Sutler vs. Mays, 7 Johnson's Rep., 132, and followed in the case of Dubois vs. Delaware & Hudson Canal Co., Wendell, 285, would not permit the plaintiff to recover on the common counts unless there was sufficient evidence to warrant such a recovery independent of the special agreement. That rule applied to this case would be decisive and fatal to the action below, and we find no authority for establishing a rule irreconcileable with it. *60The rule in all respects seems to be just and salutary, and we feel inolined to adopt it.
It is true that where a contract has been rescinded, money paid thereon may be recovered under the common counts. This'contract however does not seem to have been absolutely rescinded.- Although the jury found.this tobe the case, still the matter involves a question of law, and from the facts detailed in the bill of exceptions, we are inclined to think the grounds of the plaintiff’s action below resulted not from the abrogation of the old contract but from the creation of a new one.
The judgment below will therefore be set aside and a new trial awarded.