¶1The opinion of the Court was delivered by
¶2This was an action of assumpsit, to recover . money due trom defendant, Belton, to the plaintiff, for a tract of land, sold and delivered to him by the plaintiff. It was contended that there was a special contract, and that therefore this action would not lie; and a motion for a nonsuit, which I overruled. There was no evidence that Moorehead was indebted to the plaintiff; it was proven that he had promised to sign a note, as the security of Belton. I therefore directed that his name should be stricken from the record, which was done, and a verdict was given for the. plaintiff.
¶3A motion is now made to set aside the verdict, and for leave to enter up a judgment of nonsuit. Upon hearing the case below, I conceived the action to be general indebitatus assumpsit for goods sold, and therefore determined that the action might be maintained. For whatever maybe the nature of the contract, whether for goods sold, or service to be performed, where the goods are delivered, or the service performed, indebitatus assumpsit will lie. (1 Chitty, p. 338. 1 Wilson, 117.)
¶4But on an examination of the record, it ap*440pears to contain but two counts for money had and received, and for money paid, laid out, and expended. The action, therefore, cannot be supported, and the nonsuit should have been granted below. It is unnecessary to notice the second ground, as the defendants must prevail on the first. I am, therefore, in favour of the motion.