¶1The court below, in its charge to the jury, clearly misconceived the law. There is no principle of pleading better settled, than that indebitatus assumpsit will lie to recover upon a contract not under seal, if it has been executed. It is usual to count upon the special contract, and if it be conditional, to aver a performance of the condition ; but the common count is altogether sufficient. See 1 Chit. Pl. 339; Fellow v. Dickinson, 10 Mass. R. 287; 11 Wheat. R. 237; 7 Cranch, 299.
¶2But although the charge, as an abstract proposition of law, is incorrect, we must nevertheless institute the inquiry, as to whether the plaintiff in error could have sustained any injury from it. The bill of exceptions informs us that there was no evidence showing a delivery of the counter and shelves, or an offer to deliver. If the proof had stopped here, we should not feel justified in saying the plaintiff had sustained any injury, for it would be most manifest that the contract was ex-ecutory — not executed. But the defendant acknowledged he had purchased the property, and. for aught that appears, it may have been left with the plaintiff as bailee. We cannot, then, determine that no injury resulted to the party, or that the contract had not been executed. The whole proof is not set out in the bill of exceptions, and we are not allowed to presume that the affirmative charge of the court was abstract. Peden v. Moore, 1 S. & P. 71; Rowland, et al. v. Ladiga, 9 Por. R. 488. The true rule is laid down in Smith v. Houston, 8 Ala. R. 736. It is there stated, “ when giving full credit to the plaintiff’s proof, it fails to make out such a case as entitles him to recover, a charge to the jury which is erroneous, as the assertion of a legal proposition, furnishes no ground for the reversal of a judgment against *460him.” In such case, it is obvious that the court must be in possession of all the facts, and must be able to determine, as upon a demurrer to the proof, that the party complaining of the improper charge has no right to recover. See Armstrong v. Tate, 8 Ala. Rep. 635; Armstead v. Thomas, 9 Ib. 586.
¶3For the error in the charge given to the jury, the judgment.is reversed, and the cause remanded.