#### DICKSON, MALLORY *&*CO. *vs.*PLEASANT JORDAN *&*AL.

5n an action on an express contract for the price of Rope sold and delivered, where no price was agreed upon, the defendant can only shew What was the *market*price, generally, of rope ol this kind, at the time of the sale, hut cannot shew what was the real or actual value of the article sold, so as to reduce the amount, which the plaintiff would be entitled to recover, below ■the market price at the time.

Appeal from the Superior Court of Law of Perquimans County, at the Spring Term, 1851, his Honor Judge Ellis presiding.

This action is assumpsit, and the plaintiffs declared in two counts. First, on a special contract for the sale to the defendants of ten coils of fishing rope, at the price of 13 3-4 cents, per pound. And secondly, on a *quantum valebit*for goods, wares and merchandise,, sold and delivered. It appeared from the evidence, that the plaintiffs were merchants in the city of Norfolk, and the defendants were engaged in fishing operations, in the spring of 1848, on the Chowan river, in the county of Hertford. And the plaintiffs proved by one Kingfield, -their clerk, that in the latter part of the year 1847, one of -the defendants, he did not know which, left a verbal order with the plaintiffs to send them ten coils *80of fishing rope; that the plaintiffs did not then have the rope on hand ; that he knew nothing of any bargain between the parties as to the rope, but, that he only knew that it was forwarded to the defendants in the month of February, 1848. And that the price, at whcih the rope was charged by the plaintiffs, in their account against the defendants, to wit: 13 3-4 cents per pound, was the same as that usually charged by the plaintiffs to their other customers. And in reply to a question of the plaintiffs, as to the quality of the rope, the witness further said that the quality was good, and such as they sold to otheis for fishing purposes. The rope was 21-2 inches in diameter, and the kind of rope used in hauling seines. It further appeared, that the rope came to hand and was used by the defendants in their said business.

The defendants then offered to prove, that the rope was of bad quality — that within two days after they commenced using it, it repeatedly broke — and proved to be rotten and defective in quality — that it was of little use, and they had to procure other rope in the place of it.

This evidence was objected to by the plaintiffs, and rejected by the Court. But the Court held that the defendants might shew, and could *only*shew, what was the *market*price, generally, of rope of this kind, at the time of sale, but could not shew, what was the real, or actual value of the article sold, so as to reduce the amount, which the plaintiffs would be entitled to recover, below the *market*price of the article at the time. The defendants then proved that the market price, at the time, was 12 1-2 cents per pound, for such rope — and the plaintiffs had a verdict accordingly.

Rule <bn the plaintiffs for a new trial. Rule set aside, and judgment for the plaintiffs. Appeal to the Supreme Court.

*W. N. fl. Smith,*for the plaintiffs.

*Jordan*and Bragg, for the defendants.

*81Pearson, J.

It was held in *Dickson*v *Jordan,*11 Ire, 166, that no warranty of quality is *impliedin*the sale of goods. An attempt is made to distinguish the case, as it now comes up, because it appears now, no price was agreed on, whereas before, it was stated that *“*the rope” was sold at the price of 13 3-4 cents per pound. No stress was laid, in the opinion, on the fact, that there was an agreed price, and the circumstance that no price was *expressly*agreed on, cannot distinguish this case, and take it out of the general principle, then announced.

If a defendant is’not allowed to abate the amount of damages, for a breach of contract in failing to pay for goods sold and delivered, when the price was agreed on, by' proof of their inferior quality, it would be singular, if he was allowed to do so, because the price had not been expressly agreed on.

It was said, *there*the action was on an express contract; *here,*it is on an implied contract, and, as the plaintiff must declare on the “ *quantum*valebat,” the question of value is open. We deny the premises from which this conclusion is drawn. The contract, in both cases, ismn express one — ■ the only difference being, that in one, the parties fix on the price ; in the other, leave it to be inferred from the circumstances ; and the inference is, that the one agreed to take, and the other to give, the selling price, or (as it is termed in the case) the market price. If.the vendor demands more, it is his duty to make it known — if the vendee is not willing to give it, he must say so. Silence is taken for consent to give and take the market price. Neither party is allowed to take advantage, from the fact, that the dealing was upon this mutual understanding.

A Doctor is sent for, and attends day and night upon a slave. It would be singular, if the owner when sued for the services, should insist, “ no price was agreed on,” the declaration is upon a *“quantum*meruit,” and I may show, in abatement of the damages, that the slave died, and so the *82services were of no value. If a carpenter works day after day, according to instructions, and the. building is of no use, because of a defect in the plan — can the employer on that ground be allowed an abatement from the wages ordinarily demanded, and paid to carpenters?

From the argument, and the cases cited, (those referred to in 2 Greenleaf 136, note 4,) we presume the counsel has fallen into a misapprehension, by not adverting to ihe dis2 tinction, between a case like the present, where the contract is express, and an action on a contract implied by law — as when one agrees to build a house according to certain specification for a given sum, but does not build the house according to contract, and therefore connot maintain an action on it. Still if the other party takes any benefit from his labor and materials, *the law will imply,*from his doing so, *a promise de bono et*quo, to pay what the labor and materials are worth to him. Here the question of value is open; with this restriction, however, that the price agreed on is the “standard” and cannot be exceeded, and the rule is, if the house, built according to contract, be worth the sum agreed on,' how much should be allowed for it, built as it is ? In such a case, it would be out of the question to allow the plain tiffto recover according to workman’s wages, or the rates of the trade, so much per square; for it may be, the defendant would not have had the house built, but for •the very low price at which the plaintiff agreed'to do it.

Per Curiam, Judgment affirmed.