¶1delivered the opinion of the Court.
¶2This was an action of assumpsit. The declaration contained four counts, to wit: “for money had and received; goods sold and delivered; for interest; and an account stated.”
¶3Plaintiff had judgment for $288.
¶4On the trial, the plaintiff relied on the following paper: —
¶5“State of Missouri — County of Ray.
¶6“ Received of Dr. John Sappington, of Saline county, Mo., by the hands of R. Hawpe, three hundred boxes of medicine, at one dollar and fifty cents each, amounting to the sum of four hundred and fifty dollars, which I promise to sell, and account to him therefor, or return those not sold on application at my house, on or,before the first day of next January, subject to a deduction of twenty per cent, for my services in selling.— Given under my hand, this 28th May, 1838.
¶7“Jacob Stollincs.”
¶8There was no proof of any application by plaintiff at defendant’s house.
¶9It is well settled, that a plaintiff cannot recover in general indebitatus assumpsit, where there is an express contract, not rescinded or executed. — 1 Chitty’s Plead., 133, and 2 Tuck. Com., 133 ; 11 John. Rep., 438.
¶10Where there is an open and subsisting agreement, a party is not at liberty to waive his contract, or convert it into a general indebitatus assumpsit.
¶11The defendant, by the terms of his agreement with the plaintiff, was at liberty to return the medicine, or its stipulated value, and he was in no event responsible until a demand was made.
¶12The judgment of the Circuit Court will be reversed, and the cause remanded.