By the Court, Bronson, J.
The offer made by the defendant below for the purpose of effecting a settlement, was rejected by the plaintiff, and must therefore be laid out of the case.
The change which the defendant consented to make in the price to be paid for the timber, only modified the written contract in that particular. .In all other respects the agreement, and the rights of the parties under it, remained unaltered. The delivery of the whole quantity of timber, and by the specified time, continued, as they were before, to be conditions precedent to the plaintiff’s right to the price; except as to that portion which was payable on the delivery of each load, and that has been paid.
The contract afterwards underwent a further modification, by enlarging the time for the delivery of the timber. Although there was no express stipulation to that effect, *635Such an agreement may be implied from what took place after the first day of July—the time when the contract should have been fully executed on the part of the plaintiff. He continued to deliver timber after the day had passed, which the defendant received without objection. Payments were made and received on the contract. Both parties, therefore, may be regarded as having tacitly assented to an extension of the time for performance on the part of the plaintiff. If when the day arrived the defendant intended to insist on the default, and not allow the plaintiff to proceed to a completion of the delivery, he should have spoken at that time. Jewell v. Schroeppel, 4 Cowen, 564. The plaintiff on his part had no choice but to go on with the contract, or forfeit what he had done under it. Neither party can now set up that the contract was wholly rescinded by what took place after the first of July. The quantity and description of timber to be delivered, and the price to be paid—subject to all just allowances to the defendant for the default—remained untouched. Whatever foundation there might be for the defendant to insist that the contract was at an end, there was surely no ground for any such argument on the part of the plaintiff. All the wrong had been on his part. He refused in the first place to proceed with the contract without a large advance in price; and then made default in point of time. The most that he can ask is, that the original contract shall be deemed to have been modified in these two particulars—not wholly abandoned. To go further would be the height of injustice. Indeed the court below did not put the case upon the ground that the contract had been rescinded, nor did the counsel for the plaintiff assume that position on the argument in this court.
What then is this case ? The plaintiff agreed to deliver a large quantity of timber ; for which he was to be paid— ■except the part which he has already received—when the whole quantity should be delivered. He furnished a part of the timber, and then, without any excuse or apology whatever, stopped short; and now claims to recover for the timber actually delivered. The mere statement of the *636case furnishes a complete answer to the action. Courts have no dispensing power to absolve men from their legal engagements, nor can they make contracts for them. The delivery °f the timber was a condition precedent to the payment of the price ; and the plaintiff must first perform on his part before he has any ground of complaint against the defendant. This court has never held any other doctrine. I shall not go through with the cases—it will be enough to refer to a few of them. M'Millan v. Vanderlip, 12 Johns. Rep. 165. Jennings v. Camp, 13 id. 94. Ketcham v. Evertson, id. 359. Wood v. Edwards, 19 id. 205. Champlin v. Rowley, 13 Wend., 258" court="N.Y. Sup. Ct." date_filed="1835-01-15" href="https://app.midpage.ai/document/champlin-v-rowley-5514430?utm_source=webapp" opinion_id="5514430">13 Wendell, 258. Sickles v. Pattison, 14 id. 257.
The cases cited by the plaintiff’s counsel will not aid him. In Linningdale v. Livingston, 10 Johns. R. 36, the contract had been partially performed by the plaintiff in proper time, and after the day he offered to complete the work, but was prevented by the defendant. The court said that this put an end to the special contract, and the plaintiff might recover for the logs which had been delivered, under the general counts. In the case under consideration, the plaintiff has never offered to complete the performance of his contract, nor has he been prevented from doing so by any act of the defendant. Raymond v. Bearnard, 12 Johns. Rep. 274, turned on the same distinction. The plaintiff offered to. go on with the contract, but the defendant refused, on the ground that the plaintiff was in default. The court held that there was no longer any subsisting special agreement between the parties, and the plaintiff might recover back the money paid, under the common counts. In Dubois v. The D. & H. Canal Co., 4 Wend., 285" court="N.Y. Sup. Ct." date_filed="1830-05-15" href="https://app.midpage.ai/document/dubois-v-delaware--hudson-canal-co-5513352?utm_source=webapp" opinion_id="5513352">4 Wendell, 285, the plaintiff had been prevented from performing the work in time by the act of the defendants, and it had, in fact, been performed, though after the day. It was also said that the special contract had been rescinded by the acts of the de-, fendants. But in this case, the plaintiff has neither performed on his part, nor is there any pretence that the defendant has done any act to put an end to the special agreement. The remarks of Sir James Mansfield, C. J., in *637Cooke v. Munstone, 4 B. & P. 351, have been cited and misapplied a hundred times. The decision itself proves nothing in favor of this action. The plaintiff had paid £2, 5s., as earnest money on a contract by which the defendant was to deliver 35 chaldrons of soil, and the defendant had wrongfully refused to deliver it. The plaintiff declared on the special agreement, and added the money counts. Although he clearly had a right of action, the court held that he could not recover on the special count, because there was a variance between it and the special agreement; and that he could not recover back the money paid under the general counts, because the special agreement was still in force. With great respect, I think the last branch of the decision was not well founded. The defendant, by his own wrongful act, had put it in the power of the plaintiff to sue for a breach of the special agreement, or to waive that right, and recover back the money paid. It did not lie with the defendant to object that the special contract was still in force after he had refused to perform it. It is, however, unnecessary to decide any thing on that point. It is enough that the case cannot aid the plaintiff The only case which favors this action is Oxendale v. Wetherell, 9 B. & C. 401, and it has already been held that this decision is not in accordance with the rule as settled in this state. Champlin v. Rowley, 13 Wend., 258" court="N.Y. Sup. Ct." date_filed="1835-01-15" href="https://app.midpage.ai/document/champlin-v-rowley-5514430?utm_source=webapp" opinion_id="5514430">13 Wendell, 258.
Some confusion has crept into the cases for the want of proper care in distinguishing between the right and the remedy—or in other words, between the cause of action and the mode of enforcing it. These are distinct considerations, and yet the language of judges, in relation to one branch of the subject, has frequently been quoted as an authority concerning the other. Where there is no dispute about the right of action, there may still be a question about the form of the remedy. One general rule in relation to special agreements for the performance of labor, delivery of materials, or the like, is, that so long as the contract continues executory, the plaintiff must declare specially ; but when it has been executed, he may declare generally—using only the appropriate common counts. This he may do although the *638special agreement was in writing. When the plaintiff has5 performe¿ on his part, the law raises a duty on the part of the defendant to pay the stipulated price ; and the plaintiff maf count either on this implied assumpsit, or on the original executory agreement. If, however, time was to be given the defendant for payment, the general indebitatus' count will not answer until the credit has expired ; and2 there may be cases where the mode of payment is- such that the common counts will not answer, although the plaintiff has performed on his part. Many of the rules on this subject are well stated in Lawes on Plead, in Assump. 4 to 8-Where the case is such that the plaintiff might recover on-the general count, it will be no objection that the declaration also ¡ contains a count on a special agreement; and if the plaintiff attempt to prove the special agreement, and fail-to do so, it will not prejudice his right to recover under the-general counts. Payne v. Bacomb, Dougl. 651. Tuttle v. Mayo, 7 Johns. R. 132. Robertson v. Lynch, 18 id. 351. These are all cases where the plaintiff has performed the agreement on his part. There is another class of cases,where there has been a part performance of a special contract, which is then abandoned by the mutual consent of the parties, or is rescinded by some wrong act on the part of the defendant. In such cases the plaintiff may resort to the appropriate common counts, and recover for his labor, materials, goods furnished, or money paid under the special agreement. But where the special contract is still subsisting, and no act has been done by one party which will authorize the other to consider it rescinded, the plaintiff cannot resort to the common counts. Clark v. Smith, 14 Johns. R. 326. There is a third class of cases, where the plaintiff may resort to the common counts, notwithstanding the work was done under a special agreement; as where the plaintiff contracts to build or do some other work for another, and the work, though actually performed, has not been done-within the stipulated time, or there has been some other departure from the terms of the contract. In such cases, although the plaintiff cannot recover on- the contract, he may sometimes count on a quantum meruit, and recover the value *639of the work and materials delivered to the defendant. Jennings v. Camp. 13 Johns. R. 94. Jewell v. Schroeppel, 4 Cowen, 264. 2 Stark. Ev. 97, 8. Bull. N. P. 139. Keck’s case, which is there cited, falls within this class of cases, and within the rule as laid down by Buller. The work had been done, the plaintiff had built the house, though not at the time and in the particular manner specified in the contract.
Whether we regard this as a question of pleading or one of principle, there is - no foundation for the present action. In all the cases where the plaintiff has been allowed to recover on the general counts for labor performed or materials furnished under a special contract, the work had either been actually executed, though with variation as to time or manner, or the special agreement had been rescinded—it was no longer in force. As a question of principle, it is impossible to uphold the action. The defendant has not only fully performed the agreement on his part, but he has done much more than could have been required of him. He has consented to an advance in price, and enlarged the time for the delivery of the timber. Neither before nor since the plaintiff’s default has he either done or said any thing to prevent the plaintiff from completing the execution of the contract. We have then the naked case of a man violating his own contract without cause, and then attempting to maintain an action against the injured party. To allow the experiment to succeed, would be both contrary to law and against good morals.
The following dissenting opinion was delivered :
By Cowen, J.
It is clear the plaintiff below would have had no right to recover without strict performance, unless there had been a departure from the contract by mutual consent, express or implied. 13 Wend., 258" court="N.Y. Sup. Ct." date_filed="1835-01-15" href="https://app.midpage.ai/document/champlin-v-rowley-5514430?utm_source=webapp" opinion_id="5514430">13 Wendell, 258. The fact is clear, however, that the contract was departed from by mutual agreement; and yet the defendant below contends that he is entirely absolved from payment. He waived the time, he waived the price, he paid the money after the time, and finally sent in his account with the balance, after charging *640damages for non-performance; and it is upon his own data that the recorder directed a recovery. Virtually, the defendant said, “ I will no longer hold you strictly to price or time f and after a partial delivery and partial payment, by making out his account, he says with equal plainness, “ I waive a full performance.” If he did not mean to pay for what was delivered, he should have taken his ground in the first instance. He might have sued the plaintiff for non-performance; but he leads him on under a new arrangement, by which he gets a good portion of the timber. He might perhaps have stopped when time was departed from. Receiving the timber afterwards, he was bound either to return it or pay for it.
The late case of Champlin v. Rowley, 13 Wend., 258" court="N.Y. Sup. Ct." date_filed="1835-01-15" href="https://app.midpage.ai/document/champlin-v-rowley-5514430?utm_source=webapp" opinion_id="5514430">13 Wendell, 258, certainly goes far enough for all necessary purposes of protection to vendees. That allows a man, where only part of the goods are delivered pursuant to the contract, that being entire, to- retain whatever shall have come to his hands without paying any thing. Former cases had repeatedly gone as far in respect to labor, and several English cases, even where materials had been found and applied to improvements on real estate. In the two latter cases, all return in kind would be impracticable. But wherever it was otherwise, as in the case of a vendee of portable articles, he was bound to return them, or else pay on a quantum valebant, though the vendor failed to perform. Oxendale v. Wetherell, 9 Barn. & Cress. 386. This case, however, stands expressly overruled in Champlin v. Rowley, and it strikes me very properly. The case at bar might have afforded, in its original shape, an illustration of its soundness. The vendee is in the course of receiving vendible articles in the line of his trade. He is certainly not bound to keep them on hand, to ascertain whether the vendor will deal honestly or falsely with him. He might have said to the plaintiff, “ Fulfil your contract as it stood, or I will pay you nothing.” That, we have seen, he did not do; and no case, in this or any other court, has gone1 so far, as to require the plaintiff to do what the defendant has himself waived. On the contrary, there are a multi*641tu de of decisions in this court, both in respect to special contracts sealed and simple, making the deviation by mutual consent the foundation of an action of general indehitatus assumpsit. Where a party will direct the vendor to go on, still receiving the goods after the time, or without regard to the quality, quality, or price originally stipulated,, such circumstance forms a new contract implied by the' law, from the equity of the case. This is not doing so much as a court of equity does every day, in respect to bargains concerning real estate. The court disregards time and all other circumstances of inconsiderable moment, in favor of a party who has even of his own head departed from the' terms of the condition. It does so by substituting a compensation for strict fulfilment. It was the extreme rigor of a court of law, which drove chancery to the supposed necessity of relief against various forfeitures and penalties arising from want of strict punctuality. The court's of law could not relieve in respect to land's, whether the departure? from the contract were with or without mutual consent,, because of the statute- of frauds. Every thing out of the' writing was void, as resting in parol. Of course'such matters fell to the court of chancery. But the courts of law stood' clear of the statute in respect to goods and chattels; and the English courts thought they were authorized, in all cases of delivery of-goods, to depart from the exact terms of the contract in case of a part performance. They did' something like what chancery does of real estate;' allowed’ pay for the goods delivered and retained, deducting the damages for the want entire performance. This Was equalizing the rights of the parties on equitable principles. It was taking what they considered the substance of the contract, instead' of its form. It was doing the same that all courts of law now do in suits on penal bonds. Some courts of law have* deemed it their duty, within these principles, to make an-apportionment in all cases' whether of labor or goods sold,- or materials found, allgwing a compensation for benefit received, though the laborer or vendor may have wilfully" disregarded the special contract. Britton v. Turner, 6 N. *642Hamp. R. 481, and the cases there cited. Wadleigh v. Sutton, id. 15. We have adhered with greater exactness to1 the condition, though this court certainly felt itself staggered as to mere time, in Raymond v. Bearnard, 12 Johns. R. 274. We impose the penalty in order to enforce the exercise of good faith. We hold what was so repulsive to' Lord Tenterden’s ideas of justice, in Oxendale v. Wether ellr that, if a man agree to deliver 250 bushels of wheat by a certain day, and fall short but one bushel, the vendee gets the 249 for nothing. Such is undoubtedly the spirit of our cases, as was shown conclusively by Mr. Justice Nelson, in Champlin v. Rowley. This stern ground was first taken by Mr. Justice Spencer, in M'Millan v. Vanderlip, 12 Johns. R. 16. in commenting on Waddington v. Oliver, 5 B. & P. 61. Whether a court of chancery may not finally feel itself driven to interfere in some of these apparently hard cases, we need not inquire, nor with how much propriety. Mansfield, C. J. in Wilde v. Fort, 4 Taunt. 341, complained that the indulgence allowed by that court in respect to real contracts had resulted in dreadful laxity among the parties; while on the other hand, Britton v. Turner, deemed our rule enforcing personal contracts so very severe as to disregard it even in respect to contracts for hiring by the year. Wadleigh v. Sutton is to the same point. And see Bream v. Marsh, 4 Leigh, 21. All I mean to contend for is, that neither policy or authority will warrant us in going farther then we have done. As to authority, there are several cases from Jewell v. Schroeppel, 4 Cowen, 564, to Dubois v. The Delaware Hudson Canal Company, 4 Wend., 285" court="N.Y. Sup. Ct." date_filed="1830-05-15" href="https://app.midpage.ai/document/dubois-v-delaware--hudson-canal-co-5513352?utm_source=webapp" opinion_id="5513352">4 Wendell, 285, inclusive, which, as I understand them, will sustain the judgment now in question.
In the case at bar, we not only have an abundance in the acts of the parties pending the contract, from which to imply that they had changed it; but, as I said before, the defendant himself finally made out an account current, presenting those very principles of equitable adjustment on which the court below proceeded. It does not detract materially from the force of this evidence that the defendant intended it as a measure of com*643promise, and told the witness that the agreement was conditional. The evidence was competent. We know what the agreement was; and items are always evidence, even though the account be made out with the express view to D r settle a controversy. That kind of evidence is never withheld as an effort to buy peace, unless it relate to the offer of a round sum avowedly or impliedly for the sake of peace. Ail this I take to be well settled. It is obvious, in the first place, that the cautionary declaration, insisting on former conditions, can have no controlling effect within the rule that a declaration shall be taken together. That part of a conversation which goes in favor of a party is received only as explanatory of the act, or the part of the confession which makes against him, and a jury are never bound to believe the exculpatory portion in the face of other circumstances; they may reject it, and rely on that alone which inculpates. Ives v. Bartholomew, 9 Conn. R. 309. Washington Bank v. Barrington, 2 Penn. Rep. 27. Newman v. Bradley, 1 Dall. 240" court="SCOTUS" date_filed="1788-01-01" href="https://app.midpage.ai/document/newman-v-bradley-2381741?utm_source=webapp" opinion_id="2381741">1 Dall. 240. Quick v. Johnson, 6 Mart. Lou. R. (N. S.) 532, 3. Respublica v. M’Carty, 2 Dall. 86. Rex v. Clewes, 4 Carr. & Payne, 221. Rex v. Steptoe, 4 id. 397. One word more in regard to the account being a communication, with a view to compromise. Almost every old account drawn from a book partakes of the same intent; but it is not the less evidence for that reason. I know some cases have gone very far to shut out every thing connected with a proposition to compromise. Such was the case of Williams v. Thorp, 8 Cowen, 201, and one of the nisi prius cases upon which it proceeded. These cases must certainly be taken with great qualifications. The general rule as settled by our highest judicial authority is, that the admission of any fact in the course of a treaty for compromise is competent and credible. In Murray v. Coster, 20 Johns. Rep. 576, a bill was filed to recover a share in the proceeds of goods. The defendants answered that they had, in order to avoid litigation, offered to pay their share without interest, but reserved the right to plead the statute of limitations if the offer was refused. This was holden to be an admission of the *644fact of indebtedness, and as such, available against them; yet admission was made pending the suit, and in the course of an attempt to compromise. The admission was treated as so full and distinct that it removed the bar of the statute of limitations. So where a defendant requested a witness to go and compromise an action for a breach of .marriage promise, which he told the witness herbad made. Thompson, Ch. J. received the evidence, and remarked that there was the admission of a fact, independent of the compromise. Mount v. Bogert, Anth. N. P. R. 190. An admission of a fact, according to almost all the English cases, though made in the course of a treaty of compromise, is .evidence against the party. It is the mere proposition not accepted, to do an act by way of settlement, which is excluded. Such is the distinction laid down in the English books of evidence without exception, and such is a fair deduction from the English cases. The proposition usually put as am instance is an offer to pay a round sum in the negotiation of compromise ; but if the subject of dispute be a bill of exchange for ■example, and the party admit his acceptance, though in the course of .the same treaty, that is evidence. 1 Phillip’s Ev. 108, 9, 7th ed. 3 Esp. N. P. Cas. 113. The same distinction was expressly held in Hyde v. Stone, 7 Wendell, 354. The distinction put by Hosmer, Ch. J. in Hartford Bridge Co. v. Granger, 4 Connecticut Reports p. 142, is between an •offer as .of £.10 »to settle, ,and the admission of an -item in an ■account. The case ¡itself was an admission that the bridge was not well made, and it was received, though made .in the ■ course of a fruitless attempt to compromise. The same distinction is well illustrated in Marsh v. Gold, 2 Pick. 285, 290. In Delogny v. Rentoul, 2 Mart. Lou. R. 175, the rule was put by Livingston, counsel, -and adopted by the court in these words: “ -Proposals made while a compromise is on the carpet, do not bind-; but conversations in which a fad is disclosed, may be admitted to prove it.” Attempting to compromise -a crim. con. suit, the defendant admitted to the plaintiff that ¡he had been guilty, and offered to take and bring up one of .¡the .plaintiff’s childrens held admissible. Sanborn v. Neilson, *6451 N. Hamp. R. 501, 508, 9. The books are full of the like cases. See Hamblett v. Hamblett, 6 id. 333, 342, 343, and the cases cited at the last page.
In the case before us, the account was drawn out, as we .'have seen, crediting all the timber delivered and received, ■not at priees under the first contract, but the new one. In truth, the account is a solemn and deliberate admission of ■ every thing on the credit side. The only qualification is a debit for damages which were unliquidated, and therefore -open to negotiation. The paper was in other respects equivalent to a balance struck on the part of the defendant. It was saying, “ I owe the plaintiff for so much lumber at such a .¡price,” and the admission stood fortified by the whole course .of the transaction.
My opinion is, that the judgment below should be affirmed
The Chief Justice, however, concurring in the opinion delivered by Mr. Justice Bronson, that the judgment of the .mayor’s court ought to be reversed, it was accordingly r-s~ ¡parsed and a venire de novo awarded.