The opinion of the court was delivered by
On an examination of the contract, together with the testimony, we cannot consider the transaction in any other view than as a sale on time, — the defendant to furnish security,— the time to be thereafter agreed upon. The time was agreed on at one and two years. Whether security was in fact offered and refused we cannot determine, as the exceptions find that the testimony on that point was contradictory. The verdict could not, therefore, have been directed by the court below on the general counts, unless they considered that it was wholly immaterial whether security was offered or not, — as that was a question of fact, to be decided by the jury. We think the court below erred in ordering a verdict for the plaintiff. If he can recover at all, it must be on his special count. The cases of Hoskins v. Duperoy, 9 East 498, Cathay et al. v. Murray, 1 Camp. 335, Dutton v. Solomonson, 3 B. & P. 582, and Brook et al. v. White, 1 New Rep. 332, are decisive of the case before us. The judgment of the county court is, therefore, reversed.