
    Israel Keyes, Plaintiff in Error, versus Hezekiah F. Stone.
    
      Practice. Where, m assumpsit, the plaintiff declares on a special agreement, a quantum meruit, and a general indebitatus assumpsit, and on trial he proves a special agreement, but different from the one declared on, he may still recover on the general count, if his evidence will support it.
    Where there was a bill of exceptions to the rejection of evidence in the Common Pleas, and upon error in this Court, the evidence was deemed admissible, a new trial was ordered at the bar of this Court
    This writ of error was brought to reverse a judgment of the Court of Common Pleas in this county, rendered June term, 1803, in which the plaintiff in error *was plain- [*392 J tiff, and the defendant in error was defendant.
    The original action was assumpsit to recover 20 dollars, 69 cents, for the work and labor of the plaintiff’s son. The declaration contained three counts. The first was on a special agreement; the second was a quantum meruit; the third, a general indebitatus assumpsit.
    
    On the trial upon the general issue, the plaintiff proved that he agreed with the defendant, that his son Jonas T. Keyes should work for the defendant seven months, for which he was to receive 53 dollars; but, if the son should dislike to live with the defendant, he was to have liberty to leave him before the expiration of the term; or if the defendant should dislike the son, he might, on the other hand, turn him away before the term expired; and in either case, if the son should quit the defendant’s service before the expiration of the seven months, the plaintiff was to receive for the time his son should labor for the defendant, in proportion to the sum he was to receive for the seven months. The Court decided that this evi dence did not support the first count in the declaration, as it varied from the special agreement therein alleged. Thereupon the plaintiff, to maintain the third count, offered evidence to prove that his son did actually work for the defendant two months and twenty days, which evidence the Court refused to admit; because the plaintiff, having proved a special agreement different from that laid in the declaration, could not be permitted to go into evidence to support the other counts in his declaration, and thereupon directed the jury, without hearing the evidence offered, to find a verdict for the defendant. The plaintiff offered a bill of exceptions containing the above statement, to which the Chief Justice of the Common Pleas set his seal.
    
      A. Bigelow, for the plaintiff in error
    contended that the plain tiff was entitled to the earnings of his son pro rata, and might declare on a general indebitatus assumpsit for the labor performed, after the contract was executed; and he quoted, as direct- [ * 393 ] ly in point, the opinion * of Dennison, J., in the case of Alcorn vs. Westbrook 
      . “If a man agrees to build for another a house, to be paid for it, and afterwards builds the house, in this case, he has two ways of declaring, either upon the original executory agreement as to be performed in futuro, or upon an indebitatus assumpsit, or quantum meruit, when the house is actu ally built and the agreement executed.”
    This point is discussed in Bidder’s Nisi Prius, 139., and it seems there well settled, that where the plaintiff declares on a special agreement, and also on a general indebitatus assumpsit, and the evidence is sufficient to warrant the plaintiff’s action on the general count, supposing no special agreement had been laid in the declaration, the plaintiff shall be permitted to recover on such general count, though there be a special agreement laid, whether he attempts to prove such special agreement or not.
    
      Blake, for the defendant in error
    did not deny the general position that where the plaintiff fails of proving, or does not attempt to prove the special agreement, he may recover on the general count; but he still inclined to the opinion of the Court below, that where the plaintiff, under his special count, proves an agreement, but different from the one he has declared on, it is not then competent to him to resort to his general count; and he can recover on' neither ; not on the general count, because he has proved a special con tract; and not on his count upon the special contract, because his evidence is of a different one. And the case of Alcorn, Exr., vs Westbrook, cited by the plaintiff in error, supported this position.
    
      
       1 Wils. 117.
    
   The opinion of the Court was afterwards delivered to the following effect, by

Parsons, C. J.

The opinion of the Court below was

formerly holden to be the law, and the case of * Weaver [ * 394 ] vs. Boroughs before Lord Raymond is an authority to that purpose. This, Lord Mansfield observes, was the rule, when it was the fashion to lay hold of a nonsuit, whenever it could be done. His lordship first overruled it in the case of Harris vs. Oke, in 1759, cited at the bar from Buller’s Nisi Prius, 139. And it was then his opinion, that where the evidence was sufficient to support the action on a general count, supposing no special agreement laid, the plaintiff might recover on such general count, although there were a special agreement laid, whether the plaintiff attempted to prove it or not.

Afterwards, in 1781, the case of Payne & al. vs. Bacomb came before the whole Court. Ashurst, J., adhered to the old rule, and had directed a nonsuit; but it was set aside, and a new trial ordered. Certainly the modern practice is least expensive to the parties, and most agreeable to the justice of the case, and no inconvenience can result from it; for a judgment on the general count would be a bar to an action on the special agreement. Accordingly, Espinasse, in his Digest, 140., considers the modern practice as settled, notwithstanding the former contrary resolutions.

The judgment must be reversed; but as we know not whether the evidence offered by the plaintiff would support the general count, a new trial must be granted, and let it be had at the bar of this Court. r , ,

Judgment reversed.

That a Court of error may award a venire facias de nova, when necessary to do justice between the parties, vide Grant vs. Astle, Doug. 731., and Davis vs. Pierce & al. 2 D. & E. 125. 
      
       1 Strange, 648.
     
      
      
        Doug. 651.
     