
    W. H. Fresh v. Riah Gilson et. al.
    
    The plaintiff cannot recover in an action of indebitatus assumpsit, for work and labor done under a contract under seal, unless the whole work has been done according to the contract; nor in an action against three defendants, upon a contract under the seal of one defendant only; unless the contract was made for the benefit of all the defendants, and the work performed according to the contract.
    The defendants had a contract with the Chesapeake and Ohio Canal Company for making culvert No. 116, in section No. 150 ; and the plaintiff, by a written contract under his seal and that of Gilson, one of the defendants, undertook to do the work, by the 4lh of July, 1833, at a less price as to part of the work, and at the contract price- as to the residue. This contract was given in evidence by the plaintiff. The defendants gave evidence tending to show that, according to a stipulation in that contract, Mid-ler, one of the defendants, (not Gilson, who had signed and sealed the contract,) not being satisfied with the progress of the work, some time in July, 1833, came and declared the plaintiff’s contract to be abandoned, and proceeded to finish the work before the 21st of December, 1833. . The defendants attempted to prove the amount which they had been obliged to pay to complete the contract; the'vouchers produced were disputed at every step, and the plaintiff took four bills of exception to the admission of evidence.
    The CoirRT, at the motion of Mr. Bradley, the defendant’s counsel, instructed the jury, that if they should find from the evidence that there was an agreement under seal between the plaintiff and the defendants for the execution of the work and labor for which this action is brought, the plaintiff is not entitled to recover.
    
      Messrs. Brent & Brent, for the plaintiff; Mr. Bradley, for ’ the defendants.
   Cranch, C. J.,

would have added, “unless they should also be

satisfied by the evidence that the plaintiff had performed the work according to his agreement.”

The Court also instructed the jury, at the instance of the defendant’s counsel, that if they should find from the evidence, that the plaintiff performed the work and labor for which this action is brought, under a sealed agreement between the plaintiff and Riah Gilson, the plaintiff is not entitled to recover in this action.

Cranch, C. J., would have added, “unless they should be satisfied by the evidence, that the plaintiff had done the work according to the written contract; and that the contract was made by Gilson for the benefit of all the defendants and with their consent, and that they recognized it.”

To these instructions the plaintiff also excepted,, and took his bills of exception.

Verdict and judgment for defendants.

Reversed by the Supreme Court of the United States, January term, 1842.  