“ When contracts are made, (as is sometimes the case,) purchasers make a payment, and then give up the land so as to be left, without encumbrance, to be sold again, 50 per cent. on such receipt. On these two items the commission cash, as it has been cash received. In case the agency should be closed, and a settlement made, and contracts remain on hand unsettled, then, in all those contracts that should be carried into effect, five per cent. commission, received in contracts, with a conveyance of the lands covered by the contract or contracts received. On sales made in exchange for lands, &c. ”

“ If the disputed items of account arose under the contract, they could only be recovered in a special assumpsit grounded upon the contract. If they were claimed, independent of the contract, as not being within its terms, it was insisted, that the plaintiff could set up no claim to compensation for services in the agency not embraced by the contract, which settled and defined the rights of the parties. or falsified, in equity. All the authorities referred to in the principal case cited from the New-York reports, #fnk [8] are from the decisions in equity ”

“ At all events, in order to permit an account to be opened, there must be evidence of mistake or fraud. #fnl [9] There was neither in this case. lands in Ohio, the payment of the accruing taxes on them, examining, surveying, and preparing them for sale, and of other services to be performed by Perkins, in some way or other connected with those lands. If this be the evidence alluded to, there was no objection to submitting it to the Court, to say whether the whole of this written evidence, or any part of it, created a special contract, investing Perkins with the agency of Hart's land. ”

“ Or where the defendant is the occasion of its non-performance; or where the contract has been rescinded by the parties, or put an end to by the defendant. #fnd [4] Or where the defendant, by his own act, defeats the performance. #fne [5] And where the plaintiff seeks to recover on a special contract, and the evidence offered will support a common count, supposing no special agreement, he may recover under the latter. #fnf [6] introduce uncertainty and confusion into legal proceedings, and to encourage negligence in making contracts, and infidelity in performing them. ”

“ The preparatory steps for bringing these lands, or certain portions of them, into the market, having been taken, the correspondence commenced, which is particularly referred to in the first and second reserved points. ”