
    Mudd vs. Mudd.
    Appeal from Charles County Court, This was an action of assumpsit for work and labour done and performed, and for a quantum, meruit for work and labour, &c. The general issue was pleaded. At file trial the plaintiff, (nowappellee,) swore one Richard V. Smith, a legal and competent witness, who deposed, that previous to the institution of this suit the plaintiff, and the defendant, (now app til ant,) agreed that the plaintiff shoiild build for the de» fendant a house, that after the house was built, if the defendant should disagree as to the plaintiff’s bill, that then two workmen should be selected, one by each party, who should value the work. And he further gave in evidence, by a certain Henry Green, jun. and Edward Boone, legal and competent witnesses and workmen, that they, at the request of the piaintiff and defendant, on the 1st of January 1809, measured and valued the work done by the plaintiff for the defendant, under tile contract a» stated by Smith, the witness; and that they estimated it at §205 24. It was admitted that the house was finished before the institution, of the suit. The defendant then prayed the court to direct the jury, that inasmuch ás a special contract was proved between the parties; the action of assumpsit could not be supported; but that an action on the special contract was the proper remedy. This direction the Court, [Eéy, and Clarke, A. J.] refused to give. The defendant excepted^ and the verdict being against him, he appealed to this court.
    
      In assumpsit for •work and labour* by P against X?, it was proved &at' P and I) ayn-ed that P should build a bouse for D, and that after the >.>use built, if X) sh -uld disagree as to P’s bill, tbei} two woikmen snould be selected to r^ltie the woik* The house being: bu.ii, two person» wpve selected by P and p, who measured and valued ti?e wxrfc. The Coxat refused to direct the jurj, that ’inasmuch as a special contract was proved, the action of assilutpsit couitlnoi he supported, but that au action on the special contract was the proper remedy
    
      The cause was argued before Buchanan, Nicholson, Earle, and Johnson, J. by
    
      T. Buchanan, for the Appellant.
    No Counsel appeared for the Appellee.
   JUDGMENT AFFIRMED.  