We think the objections taken by the plaintiff in error, to the recovery in this case, are well taken, and must reverse the judgment, according to our conception of the pleadings, and of the matters drawn in controversy by them.
The declaration is for divers notes, goods and chattels, and oxen sold by the plaintiff’s intestate, Robinson, to Cast, and for money had and received by Cast to the use of the intestate.
The pleas were, the general issue, and payment to the intestate in his lifetime, and an account stated and settlement between the intestate in his lifetime, and Cast, and payment and receipt in full by the intestate to Cast. Issues were made up on these pleas.
The errors assigned which we think necessary to notice, are, the want of evidence to sustain the verdict, and in modifying defendant’s first instruction, and in refusing the last instruction asked.
If we understand the record, the evidence contained in the bill of exceptions, does not support the verdict. The whole case seems to be a contract for the sale and purchase of some land to which Cast’s wife was entitled, on a division of her father’s estate, and which had been sold to her brother, the intes*454tate. Yokes of oxen and notes were given, it seems, by the intestate, in part payment, and this suit is brought, so far as we can understand it, to recover back the value of this property, a deficiency in the quantity of the land being alleged.
The proof seems to make out such a case. The declaration is- on a contract to pay money for certain notes and oxen. The allegations and proof do not agree. The administrator, under this declaration and proof, cannot' recover the value of the notes and oxen in this action, under the counts he has framed. From all we can gather, the contract is still executory and an indebitatus assumpsit will not lie in such case.
We are not satisfied that the merits of this case have been thoroughly investigated. It seems to us, the plaintiff should have recovered a much larger verdict, or none at all. As we apprehend the facts, this verdict and judgment ought not to stand. On the facts as we understand them to be proved, the defendant’s first instruction should have been given without any modification. By the modification, the jury are, in effect, told that the plaintiff has a right to recover the amount of any notes his intestate may have made to the defendant, which had been paid by the intestate, when, by the previous part of the instruction, they were told he could not do so.
As to the other, and last instruction, which the court refused, it would seem that this case did properly come within section 90 ch. 109, title “ Wills,” (Scales’ Comp. 1197.) The administrator had, doubtless, a right to put his claim on other grounds, and no demand was necessary before bringing suit. This instruction, therefore, was properly refused.
Believing this case has not been fully understood, we are of opinion, it would be better for all parties, that it should go to another jury, or resort had to another forum, in which the matters can be fully investigated, and an end put to the controversy. The judgment is reversed, and the cause remanded.
Judgment reversed.