Vicary against Moore, 2 Watts 451

The opinion of the Court was delivered by Gibson, C. J. An action of covenant lies on a specialty exclusively ; and not on a specialty modified or enlarged by simple contract. To the universality of this rule, Jordan v. Cooper is an undoubted exception; but the supposition that it has driven the rule from our courts is an erroneous one.

There it was determined that the acceptance of a deed after the appointed day of delivery, might be pleaded as equivalent to performance at the day, to entitle the vendor to a specific execution of the contract; but the remedy was not viewed, as to any thing but the form of it, in the light of an action at law, or as any thing else than a substitute for a bill in equity.

From what fell from the chief justice and myself, it may be supposed that we took the plaintiff to be without remedy at law, and in fact the matter was considered in'that aspect; but it is certain that although he had no legal remedy on the writing, he might have maintained assumpsit on the contract as modified by the acceptance, in which the specialty would have been admissible as inducement to show what parts of the original contract were incorporated with the new one. Such is the principle of Baird v. Blaigrove, 1 Wash. Virg. Rep. 170; Jewel v. Schoepel, 4 Cowen 564; and perhaps Mudd v.

Mudd, 3 Harris & J. 438; which seem to be founded on Heard v. Wadham, 1 East 619, and other modern English cases which are not authority here. See 2 T. R. 479; 3 T. R. 590; and 1 M. S. 575. In these it has been determined that where the stipulations in a deed are incorporated in a parol contract with matters unconnected with the deed, assumpsit lies for a Veach of it as an entire thing.

But it is obvious that this remedy1 is an inefficient one, and absolutely worthless after a lapse of six years; consequently its existence at law furnishes no objection to a specific execution in equity, to enforce which' was the object in Jordan v. Cooper.

That covenant is not maintainable on a heterogeneous agreement as a common law remedy, is most undoubted; and for the reason that a contract cannot rest partly in writing and partly in parol: for as the alteration of a contract makes it a different cofitract, .just as the altering of an instrument is laid in an indictment of forgery as the making of a new and entire instrument, which it is in effect; so the altering of a written contract by parol makes it all parol.

And it is certainly more reasonable that the parol part, being the more recent expression of the intention, should draw to its nature the retained stipulations of the old contract, than that the latter should draw to them the parol stipulations, which are incapable of assimilation to a specialty. The matter for consideration, therefore, is, whether necessity requires the principle of Jordan v. Cooper to be carried further than the case there decided, in which there was no modification of the covenants on which the defendant was called to respond.

Now there is a substantive difference between an alteration of the plaintiff’s stipulations, being but conditions precedent to the action, and those of the defendant, on which it is directly founded. The performance of the first may lie waived before the day, so as to entitle the plaintiff, without more, to an action on the defendant’s covenants; and it is but a step further to sustain it on a waiver, after the day, in order to satisfy the requirements of justice by a specific execution.

But to sustain a count based specifically on covenants modified by parol, would require us to give to the whole the quality and effect of a specialty. The parts super-added would be exempt from the statute of limitations; and the money secured by them would come in for a preference before the simple contract debts of a decedent. It is certainly less incongruous to reduce the whole to parol; the written contract being treated as abandoned, or used no further than to mark the terms and extent of the new stipulations. In cases like the present, it may be doubtful whether there has been an alteration or an addition.

Where the work contracted for may be executed at the same time conformably to the terms of both agreements, it may be taken that they are distinct, and competent to sustain separate actions, according to the quality and degree of each; but where they cannot so stand together, it may be taken that the original contract has been relinquished, so much of it as consists with the subsequent one being merged in it, and taking it.s character and qualities. This unity of contract by incorporation and assimilation is not peculiar to an alteration by parol.

The alteration of a parol contract by a specialty would have the same absorbing effect; as would the alteration of a specialty by a specialty, both writings constituting but one instrument. In the case before us there would seem to be both alterations and additions, which, however, equally indicate a relinquishment of the original bargain, and reduce the whole to the same grade.

What may be the proper form to reach the merits in the circumstances of this particular case it is not for us, at present, to say; but it is clear that an action of covenant cannot be maintained on a contract compounded 'of specialty and parol. The decision in Phillips v. Rose, 8 Johns. 306, is express to the point. There were other matters in the cause; and first the rejection of the plea in abatement.

The 4th .flnne, c. 16, requires that no dilatory plea be received, “ unless the party offering such plea do, by affidavit, prove the truth thereof, or show some probable matter to the court to induce them to believe that the fact of such dilatory plea is true.” Under this statute the affidavit has been dispensed with where the court could ascertain the fact by inspection of its own records. It would therefore seem that the record of the foreign attachment pleaded, being in the same court, may have been sufficiently verified by the record itself.

Yet it. is certainly the usual, and the better practice in such cases, to subjoin the affidavit. But there is a decisive objection to the plea on the face of it. It was intended to be puis darrein continuance, which requires extreme certainty; but instead of being pleaded as having arisen since the last continuance, with a precise specification of the day of the continuance, the matter is barely alleged to have arisen since the issue was joined. This is a gross defect which justified the rejection of the plea on motion.

The defendant offered in evidence certain entries in his books, not made at the time, but copied from loose slips of paper carried in the pocket for one or more days before they were transferred to the books. In Curwen v. Crawford it was said the entries must be made at or near the time, and if the latter, they ought certainly to be made in the regular routine of the business. In Ingraham v. Bockius, they were made the same evening, or the next morning, from memoranda kept by the servant who delivered the articles ; and in Patton v. Ryan, 4 Rawle 410, they were copied from a card the same evening or the next day.

In the case at bar, neither the routine of the defendant’s business, nor. any other reason for postponement accounts for the delay. It is clear, therefore, that entries on loose scraps of paper, carried in the pocket for several days, without a reason or circumstance to account for the irregularity, could not affect the party charged. But the payment to the plaintiff’s order in favour of one of his journeymen, was a defence to the extent of it. What matters it that a part of the work for which the order was drawn, was no part of the job for which the action was brought1?

Or what if the job had not been done for the defendant at all ? The plaintiff received so much money, which the defendant might have appropriated to either account at his pleasure; and having omitted to appropriate it then, he might do so when called upon. The point was erroneously put to the jury. The direction that a balance in favour of the defendant could not be certified in this form of action, was also erroneous. In Gogel v. Jacoby, 5 Serg. & Rawle 117, it was held that damages for malfeasance in the execution of a contract cannot be set off in an action on it in order to procure such a certificate.

But here the attempt is to charge the plaintiff, not on that ground, but with an overpayment, which might, if established, be recovered back in an action of indebitatus assumpsit; and it is not so much the form of the action as the nature of the- cross demand which determines the power of the jury to certify. The direction on this part of the case also ought to have been in favour of the defendant. Judgment reversed.