¶1By the Court.
¶2delivering the opinion.
¶3Was the court right in overruling the motion to dismiss the suit ?
¶4The suit was founded on an account — an account for goods sold and delivered — not on any special contract.
¶5The proof showed that there was a special contract, aud that the contract had been broken by Mitchell, the plaintiff in the action. To be more particular, the proof showed that it was agreed by him and Sentell & Pursell, the defendants in the action, that he was to furnish them with a pair of mill stones, with mill irons and gearing, and was to put up the machinery; and that he was to.do all this for $211, of which $100 was to be payable on the 25th December, 1857, and $111 on the 25th December, 1858.
¶6The proof further showed that Mitchell had furnished the mill stones and mill irons, but had failed to do anything more under the agreement.
¶7This being the state of the facts, Sentell & Pursell,had the right to return the mill stones aud irons, and to repudiate the contract, or the right to retain the mill stones and irons, on paying for them what they were worth, and to sue Mitchell for the breach of his contract; but they had no right to retain the mill stones and irons without paying for them what they were worth. They elected to retain the mill stones and irons. Consequently, they became liable to pay Mitchell for them what they were reasonably worth, notwithstanding that he himself was guilty of a breach of the contract. And if they wore under this liability to him, it was of course his right to sue them on the liability. And that is all that he has done. Ilis action is on this liability; not on the special contract. It is an action for the price of the mill stones, mill irons and *199gearing, as goods sold and delivered generally. His proof establishes the sale and delivery of the mill stones and mill irons, but not of the gearing. And, therefore, his proof makes out his case only to a partial extent; but to that extent it does make it out. True, the count is one corresponding with the common indebitatus count for goods sold and delivered, and not with the common quantum, meruit count; but the difference between these two counts is merely formal.
¶8These things being so, it must be manifest that nothing drawn from the special contract could amount to an answer to the action. And yet both grounds of the motion to dismiss the action were drawn from the contract. They were, that by the contract, Mitchell was to do certain things which he had failed to do, and by the contract, no money was to be paid him until a day that had not arrived when he sued. If he was not suing on the contract, but on a right derived from the conduct of the parties sued, in retaining his property, it is plain that neither of these things could be an answer to his suit.
¶9¥e think, then, the court was right in overruling the motion to dismiss the action.
¶10It is useless to consider the question as to the allowance of the amendment, the action being good without the amendment.
¶11Judgment affirmed.