Bennett Goldsmith, defendant below, appellant, v. Robert Greenly, plaintiff below, respondent

Bennett Goldsmith, defendant below, appellant, v. Robert Greenly, plaintiff below, respondent. Sale-;—Priae payable other than in money—Demand. The purchase price of articles, which by the contract of sale was to be paid for in goods, cannot be recovered in an action for the same unless the goods were demanded, and unless the contract was declared on specially. A contract of sale generally implies that the price thereof is to be paid for in money. (Sussex, 1886.) This was an appeal from the decision of a Justice of the Peace, before whom the action was brought to recover the amount due for some pine piling sold and delivered by Greenly to Goldsmith. The plaintiff below testified that he was to receive one dollar and fifty cents each tor piling thirty feet long, and one dollar and seventy-five cents each for piles fifty feet in length. Goldsmith testified that the piles were to be paid for in store goods, he being a merchant and agent for the railroad for the purchase of all kinds of piling, from whom he received in cash only the price paid the plaintiff. His daughter, who was acting in the capacity of clerk, and was present when the contract was made with Greenly, testified that he (Greenly) was to receive goods and a little money in payment for the piling. Alfred P. Robinson, for the defendant, contended that if the contract was that the piling were to be paid in goods or merchandise it was a special contract and should have been declared on as such, and not in indebitatus assumpsit on a contract to pay for them in money, or at their cash price or value, quoting in support thereof, 2 Houst., 556 ; 1 C. Pl., 346 and 13 Mass., 496. Charles F. Richards, for the plaintiff, admitted the contention of the defendant, but contended that the original contract to that effect was afterwards rescinded by the parties. [MAJORITY — Comegys, C. J.,] Comegys, C. J., charged the jury: • In a contract to sell and deliver piles at a stated price without specifying in what it is to be paid, the law implies and imports that it is to be paid in money. But if the contract was that the price was to be paid in goods, then it was a special contract and should have been declared on specially, and the plaintiff below cannot recover unless he had demanded the goods. If, however, they were to be paid for in money, then he is entitled to recover t¡he amount claimed. Verdict for the defendant.