
    Elijah Graham v. William Lewis.
    
      Fairfield, Fall Term, 1834.
    ."’here the par-consent píiían ho wl» has performed work and Jabor . or'reudered serl maySmaintaíii an action on the andThcrowioi verseer and his contracted for a before the end of the year, and the ward°yagraedeto what^iT0"^' ees were worth) recoverteionmaa quimtimmcntit.
    
    
      Eakle, J. made the following report:
    “ Indebitatus assumpsit for overseer’s wages. There was a special contract that the plaintiff should become the defendant’s overseer for one year, and have under his charge a certain number of hands, and be allowed as wages, one share and J a half of the whole produce of the plantation. Early in the fall season, having committed some breach of the peace which made it prudent to keep out of the way, ho abandoned the plantation and did not return. The corn and' fodder were gathered; the cotton was not. After the plaintiff went off, his father applied to the defendant, and informed him that ho would send his son Joseph to help him pick out the cotton, if defendant would let him know when he was ready. But it is an entire mistake (as in the notice) that there was any agreement to take Joseph as a substitute for the plaintiff. Accord-¡ng to my notes, “ nothing was said about taking Joseph as a substitute for the plaintiff.” And if such an agreement was made, so far from dissolving the first special contract, it would be a continuation of it, and it should have been declared on. The plaintiff obtained his share of the corn and fodder ; and defendant said once before suit brought, that he would pay-the plaintiff his proportion of the cotton, when he got a return sales, without saying how much, or whether the amount was to be proportioned to the time ho remained. Pie said again, after the suit brought, that if plaintiff would come to a settlement, and he owed him any thing, he was willing to pay him. But these wore declarations to third persons, and were no promises to support an action, or even to sustain a count on an account stated. I held that the plaintiff should have declared on the special contract, and could not recover on the common counts, if he could recover at all ; and ordered a nonsuit.”
    The plaintiff appealed, and now moves to set aside the non-suit on the grounds : 1. That the defendant had agreed to accept Joseph Graham as a substitute of the plaintiff, for the remainder of the year. 2. That the subsequent promises of the defendant entitled the plaintiff to a verdict on the common count.
   Harper, J.

The party who sues on an entire special contract, must shew that he has wholly performed his part of it, or was ready to perform it, but was prevented by the act of the other party. This the plaintiff, in the present case, could not have shewn. He therefore could not have recovered on the special contract. But we have held that where the parties, by mutual consent, put an end to the contract, he who has performed work and labour, or rendered services, may maintain an action on the common counts for the services actually rendered, against him who has received the benefit. Such was the decision in the case of Gaffney v. Myers, decided by this Court, and in the case of-, decided at the last sitting of this Court, in which an overseer was employed who was also to work as a hand. He performed the services of overseer, but did not work. We held that his employer, having accepted these services without objection, or turning him away, was liable on a quantum meruit. See also the case of Cleverly v. M’Culloch, decided at the last sitting of the Court.

Gregg & Woodward, for the motion.

Clarice & McDowell, contra.

In this case, there is no proof that the contract was put an end to by mutual consent. But if after the plaintiff went away, the defendant agreed to pay him what his services were actually worth, or in proportion to the time he served, this amounted to the same thing. There was some evidence of this, of the effect of which we of course express no opinion; but we think it ought to have gone to the jury. >

The motion is granted.

Johnson and O’Neall, Js. concurred. 
      
       Not reported.
     