#### John Turner *et al.*plaintiffs and respondents, *vs.*William R. Martin, defendant and appellant.

1. The delivery at one time, of a quantity of. merchandise sold, but not furnished under or in pursuance of, any express agreement, creates a contract by implication; and a right of action accrues to the vendors immediately on-the delivery of the merchandise. The statute of limitations, therefore, begins to run from that time.

2. An acknowledgment, to take a case out of the statute of limitations, must contain an unqualified *admission of the debt*and show a willingness to pay it. It must be such that an action could be sustained upon it, though the original contract alone constituted the cause of action.

(Before Morcrief, Morell and McCurr, JJ.)

Heard December 13, 1865;

decided December 30,1865.

Appeal from a judgment entered upon the report of a referee.

This action was brought to recover the value of a quantity of brown stone dressed for, and furnished by, the plaintiffs to the defendant. The complaint alleges “ that during the year

1856, and during the month of January, 1857, the plaintiffs dressed for, and finished and delivered to the defendant a quantity of brown stone, for the front of certain houses, then being built by him; and that said stone was of the price and value, and was reasonably worth, the sum of $1384.44. That said sum being due and payable on the first day of February,

1857, on that day an account was stated between the said plaintiffs and the said defendant, and upon such statement the said sum of $1384.44 was found to be due from the said defendant to the said plaintiffs, which the said defendant then promised and agreed to pay to the said plaintiffs.”

The defendant, by his answer, denied all the allegations in the complaint, and for a further and separate defense alleged that the plaintiffs’ cause of action did not accrue within six years prior to the commencement of the action.

The plaintiffs proved that they furnished stone to the defendant, described in a bill of items put in evidence, without date or proof of the time when delivered. The stone furnished *662in the hill rendered amounted to $1384.44. It was, however, proved that all the stone was delivered before the 12th of December, 1856.

The suit was commenced January 24, 1863. .

The case was tried by a referee, who found :

*“*1. That the defendant entered into a contract with one McAúley, as agent of the plaintiffs, for the supplying him with a quantity of stone for certain buildings of the defendant, then being erected.

2. That stone to a considerable extent was furnished by the plaintiffs for the defendant and came to his use.

3. That after the 27th of January, 1857, and before the 1st of'March, 1857, it was agreed by and between the plaintiffs and the defendant that what then remained unperformed of such 'contract should be performed by one Codling, and the plaintiffs were discharged from any duty further to perform the same, and thereupon the defendant became bound to pay the plaintiffs their just demand for the value of the part performed, and such debt accrued by the said last mentioned date.

4. The value of the stone so supplied by the plaintiffs, and used by the defendant, after all just deductions and allowances made, is the sum of $1326.40, in which sum I find the defendant to be indebted to the plaintiffs.”

The referee decided that the plaintiffs were entitled to recover. The defendant excepted. Judgment was entered for $2390.06, from which the defendant appealed.

*E. 8. Van Winlcle,*for the appellant.

*E. R. Robinson,*for the respondent.

By the Court,

Monell, J.

There was no finding by the referee upon the issue of the statute of limitations. His general findings, however, against the defendant upon all the issues, by implication, disposes of that question. If the facts are as found by the referee in his first and third findings, he decided correctly in overruling the statutory bar.

*663The action is to recover the “ *reasonable worth*” of a quantity of brown stone furnished to the defendant. Eo special agreement is set forth, containing any terms of a contract between the parties. Ho written or express contract was proved, on the trial. The evidence was, that a quantity of stone was furnished and put into the defendant’s houses. A bill was afterwards rendered Containing the prices. One of the plaintiffs was examined as a'witness, but he nowhere speaks of any express agreement between the parties. He says the defendant wanted them, (the plaintiffs) to transfer to Mr. Codling the agreement to furnish the rest of the stone, which the plaintiffs consented to. That is all he says about any agreement. As to what the agreement was, the witness is entirely silent.

McAuley, with whom the referee finds the contract was made, was also examined as a witness. He says nothing of any agreement. He says there was an *estimate*of the stone furnished, but nothing more. In that, I am unable to find any evidence whatever of any express agreement between the parties. Hone is alleged in the complaint, and none was proven on the trial. The action was upon a *quantum meruit,*and the evidence was only sufficient to imply an assumpsit.

I think, therefore, the first finding of the referee is wholly unsupported by evidence.

There being no proof of any other than an implied contract, any evidence there may have been in support of the third finding must have had reference to such implied contract.

The referee, therefore, was not warranted in finding that it was agreed, *“*that what remained unperformed of such contract should be performed by one Codling, and the plaintiffs were discharged from any duty further to perform the same.” There was no proof of what the contract was ; and the referee could not find that it was or was not performed in whole or in part. Eo stone appears to have been delivered after December 12, 1856 ; and the agreement with Codling to complete some kind of a contract, was after January 12, 1857, *664and McAuley testified that all the stone in front was furnished and set *at one time.*

As the case is presented on this appeal, it is simply to recover the reasonable worth of a quantity of stone. It was not furnished under, or in pursuance of, any express agreement; but was furnished at one time, and prior to December 12, 1857. Upon such facts, the law makes a contract by implication, and a right of action arose to the plaintiffs, immediately on the delivery of the stone. The statute, therefore, began to run from the time the cause of action arose, which in this case was on or prior to December 12, 1857. This was not a running or mutual account, but was a delivery at one time, under an implied agreement to pay the reasonable value. *(Hallock*v. *Losee,*1 *Sandf.*220. *Peck*v. *N. Y. and Liv. S. S. Co.,*5 *Bosw.*226. *Davis*v. *Gorton,*16 *N. Y: Rep.*255.)

The letter written by the defendant to Wright, the plaintiffs’ attorney, contains no acknowledgment of any indebtedness to the plaintiffs. It clearly was not an acknowledgment of a new or continuing contract, as is required by section 110 of the Code. Such acknowledgment must contain an unqualified *admission of the debt,*and a willingness to pay it. *(Story on Cont.*§ 707.) It must be such as that an action could be sustained upon it, though the original contract was the cause of action. (*Winchell*v. *Hicks,*18 *N. Y. Rep.*558.)

I have not examined the other exceptions taken by the defendant. It is sufficient that upon the facts before the referee, he erred in overruling the defense of the statute of limitations.

There can be no doubt, I think, that the frequent and uniform decisions of the referee, during the trial, as to the effect of the plaintiffs’ evidence, misled the defendant, greatly to his' prejudice; but we can not, on that account, give any relief on this appeal. He should have moved at special term to set aside the report on the ground of surprise.

I am of opinion the judgment should be set aside, and the order of reference vacated, and a new trial ordered, with costs of the appellant on this appeal to abide the event.