#### WILLIAM H. WILLARD vs. DAVID L. PERKINS.

A. bought of'B., a distiller, three hundred barrels of rosin, to be delivered “when called for within the week next after the purchase,” and paid for the same. Within ” the week,” B. manufactured and had on hand at his distillery more than the above quantity of rosin, but A. did not call for it within “the week;” and afterwards it, with the distillery, was consumed by fire:—

Held, first, that A. was bound to call for the rosin within the time agreed upon. Secondly, that B. was not bound to set apart for A. any particular three hundred barrels. Thirdly, that A. having failed to perform his part of the contract, the rosin remained at his risk, and the loss must be borne by him. And therefore, he could recover, neither the value upon the contract, nor the price, on a count for money had and received. (The case of Waldo et al. v. Belcher, 11 Ire. 609, distinguished from this.)

Assumpsit, in which the plaintiff declared upon a breach of contract by defendant in not delivering three hundred barrels of rosin, and for money had and received. Plea — general issue. The case was tried before Manly, Judge, at the January special •Term of Beaufort Superior Court, 1853, upon the following facts agreed between the parties :—

The plaintiff purchased' from the defendant three hundred barrels of rosin, and took from him the following receipt:

“ William H. Willard, Bo’t of D. L. Perkins 300 barrels common rosin at 90, $>27!0, in merchantable order, and to be deliver* ed when called for next week — January 24th, 1851.

Received payment,

D. L. PERKINS.”

Perkins at the time was a distiller, having a still on the river opposite Washington, in which town the parties resided. At the time the receipt was given, Perkins had not the quantity of rosin on hand. A few days after the' expiration of the “next week,” (mentioned in the receipt,) Perkins’s still was accidentally burnt down. There was a demand by the plaintiff, and a refusal by the defendant on or about the 1st April 1851. After the date of the receipt, and before the expiration of the next week, Perkins manufactured' a much larger quantity of rosin than three hundred barrels, and the same was on hand at his still, and after-wards, until his still was burnt, when the rosin was burnt with *254the still. At no time was any part of said rosin set apart for Willard.

His Honor, being of opinion that the plaintiff was entitled to recover, instructed the jury accordingly, who found a verdict for the plaintiff; and judgment having been thereon rendered, the defendant appealed to the Supreme Court.

Rodman for the defendant argued :—

1. The plaintiff cannot recover on the special contract, because he has not performed his part of it, (Brown v. Ray, 11 Ire. 222.)

2. He cannot recover on the count for money had, because the special contract is still open and unrescinded, and because he is himself in fault.

Donnell, contra.

PeaRSon, J.

The value of the rosin must be a dead loss to one of the parties ; and the question is, upon which of the two shall the loss fall? It must fall upon the defendant, although there was no default on his part, because it was in his possession when it was burnt, under the rule “ a loss by the act of God falls upon the owner,” unless the plaintiff had, by a breach of the. contract on his part, taken the risk upon himself.

If the plaintiff was bound by the terms of the contract to take away the rosin, at some time during the “next week,” and violated the contract by not doing so, it was his fault that the rosin was left exposed to the fire ; and he is not at liberty to put the loss on the defendant by force of the maxim, “ no one shall take advantage of his own wrong.” So the question turns upon the construction of the contract. Was it the duty of the plaintiff, according to the contract, to take away the rosin at some time during the “next week?” Was that a part of the bargain? Such is the import of the words made use of by the parties, and there is nothing growing out of the nature of the thing to call for a departure from the words. On the contrary, all collateral considerations which the Court is at liberty to notice, tend to support that construction. The plaintiff paid the price down. This indicates an intention to take the article which he had paid for, as •soon as he could get it. Rosin 'is of a highly inflammable nature, *255and no distiller will suffer it to accumulate on his premises longer than he can help it. This affords an inference that, although the defendant not having the article then on hand, would not bind himself to deliver it until the “next week,” still he required the plaintiff to take it away at some time during that week. If it was not to be taken away during the next week, how long did the defendant agree to keep it for the plaintiff? For an indefinite time ? for one year, or how long ? It is said for a reasonable time. It is difficult to say what would be a reasonablé time, considering how much it would encumber the yard of the distillery, and add to the danger of fire. But the parlies have not left this to conjecture ■, they have fixed on sometime during the next toeek.

The plaintiff violated his contract in not calling for it in that time, and it was left there at his risk. Had it not been burnt, he could have got it at any time ; but he certainly would have been liable to pay the defendant storage for keeping it. »

It was said by Mr. Donnell, “ that time is not of the essence of a contract.” That is a maxim of a Court of Equity in regard to the payment of money ; but it does not extend to other things even in that event, and no Court can hold, that the time for the delivery of a large quantity of rosin or, of gunpowder at the factory is not, from the nature of things, a very material part of the contract.

It is also said, the rosin was never set apart and identified as the property of the plaintiff. What right or under what obligation was the defendant to set apart the rosin before the plaintiff called for it? Who was to pay for the trouble of moving it? What good would it have done to set it apart, in the absence of the plaintiff, who of course would not be bound by it? Our decision is put on the ground, not that the rosin had become the property of the plaintiff, but by a violation of his contract in not calling for it, it remained there at his risk.

Our attention was called to Waldo v. Belcher, 11 Ire. 609, and it is said there, stress is laid on the fact that the com was not measured and set apart, and consequently did not become the property of the defendant. So its destruction was the loss of the plaintiff. In that case, the question was whether the com had been the property of the defendant at the date of the contract, *256and it was held it had not, because it was not measured up and set apart so as to be then capable of being delivered. But there is no intimation that it would have made any difference if, after the date of the contract, the plaintiff had, in the absence of the defendant, gone through the idle ceremony of measuring up the requisite number of bushels, and made proclamation that he set it apart for the defendant.

In that case tire corn'was burnt before it was the duty of the defendant, according to the contract, to take it away. Here the rosin was burnt after the plaintiff was in default in not taking it away, and while by reason of such default it was left there at his risk: the distinction is obvious.

Having decided that the plaintiff cannot recover upon the count on the special contract, by reason of the breach of the contract on his part, it follows as a matter of course that he cannot recover on the common count for money had and received to his use. The proposition is self-evident, that where there is a special contract, one of the parties cannot fall back on the common counts, while the contract remains open and is not put an end to, either by mutual consent, or by such a breach or default on the side of the other party, as will give to the former a right to treat the contract as a nullity. This proposition is so fully sustained by its good sense that no authority need be cited to support it. The ■ idea that the plaintiff, who by reason of a breach of the contract on his part, cannot recover upon it, is, for that reason, at liberty to treat it as a nullity and fall back on the common count, cannot be entertained for a moment.

Per Curiam. Judgment reversed, and venire de novo.