A Treatise Upon Some of the General Principles of the Law Whether of a Legal O

Wait, William, 1821-1880

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560.
§ 3. When si)ecial assumpsit lies. In general, except as stated in the preceding section, if there be an open or unperformed special agreement, special assumpsit must be brought thereon. Maynard v. Tidball, 2 Wis. 34; Western v. Sharp, 14 B. Monr. (Ky. ) 177 ; Sherman v. New York Central Railroad Co. , 22 Barb. 239 ; Geer v. Brown, 11 Rich. (S. C. ) 42. See Weiss V. Mauch Chunk, etc. , Railroad Co. , 58 Penn. St. 295; Norris v. Durham, 9 Cow. 151 ; Butterfield v. Seligman, 17 Mich. 95. It ...has been held that where, under an express con- tract, payment is to be made, partly or wholly, by specific articles, the declaration should be special for a failure to deliver such articles. Bradley v. Levy, 5 Wis. 400 ; Bernard v. Dickins, 22 Ark. 351 ; and see Weart v. Hoagland, 2 Zabr. (N. J. ) 518 ; Mitchell V. Gile, 12 N. H. ' 390 ; Fitch v. Casey, 2 Iowa, 301 ; Ho. Rrison v. Luke, 14 M. & W. 138. But see Clark v. Fairchildy 22 Wend. 576. So, there must be a special count to try an express or an implied warranty.

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