
    
      B. J. Coles vs. Ann Holmes.
    
    1. Assumpsit for work and labor rendered, and materials furnished, hy plaintiff, as a carpenter, for the use of defendant, and at her special instance and request. It was proved hy a witness examined hy plaintiff, that there was a written agreement between defendant and a third person, by which the work was to be done. Plaintiff proved by this witness, a request to do the work, and was about to show the work done, but as a written contract had been referred to, it was insisted it must be produced by him, or its non-production accounted for; which view was sustained by the presiding Judge, and plaintiff submitted to a nonsuit.
    2. Held, that plaintiff was entitled to recover, upon proof of work done and materials furnished; that he was not bound to produce the written contract, which, as matter of defence, the defendant might have produced.
    
      Tried in the City Court of Charleston, before Hon. M. King, Recorder, July Term, 1843.
    This was an action of assumpsit for work and labor rendered, and materials furnished, by plaintiff, as a carpenter, to and for the use of the defendant, at her special instance and request. The plaintiff, after the evidence had been gone into, submitted to a non-suit, with leave to move to set it aside.
    There was but one witness examined, who said defendant made an addition to her house, and that plaintiff did part of the work. A few days after witness commenced his brick work, plaintiff came, and was asked by defendant if he was to go to work, to which he said yes, but wanted to know where his pay was to come from. Defendant told him to go to work, and she would insure him his money. This was before plaintiff commenced work, and defendant pointed out what was to be done. She showed a contract between her and a Mr. Sessions. The witness said he did the brick work and plaistering, and was paid by Mr. Legare, defendant’s brother, who, he believed, was her agent. The witness made his contract with Sessions, but looked to defendant for the money. Sessions gave him a draft on defendant, which her brother paid. Plaintiff did a part of the carpenter’s work, but not all, Sessions did part. Plaintiff worked himself, and had at one time two workmen. He, plaintiff, furnished some lumber, but witness could not say how many days he (plaintiff) worked. There was a contract shown to them.
    The defendant objected, that as the witness had referred to a written contract for the work that was to be done, that contract ought to be produced.
    The plaintiff insisted that it was not his contract, and was not in his possession. The defendant insisted that it was the contract by which the work was to be done, and tendered the contract to the plaintiff. The plaintiff refused to produce it. The witness, then, on a question put to him by the court, said that the plaintiff did undertake to do the work according to the contract with Sessions, which the defendant had shown to the plaintiff, and to him, the witness; that the work was to be done according to that contract. %
    Here the evidence and argument closed.
    The court considered that the evidence showed that the plaintiff had agreed to the terms of that contract, and that it consequently was, in truth, his contract; and therefore ruled that the plaintiff must either produce the contract, or give sufficient reason for its non-production.
    The plaintiff then took a non-suit.
    The plaintiff moved to set aside the non-suit, and to award a new trial, on the grounds following, to wit':
    
      1. That his Honor, as it is respectfully submitted, erred in excluding evidence that the plaintiff had performed the work, and furnished the materials specified in his bill of particulars, after having proved the request of the defendant to him to do so, unless he could first produce an alleged contract in writing, between the defendant and a third person, to which the plaintiff was not a party, and which was not in his possession.
    2. That if there were any written or special contract between the plaintiff and defendant, precluding a recovery under the common merits, it was for the defendant to produce and prove such special contract; and it was not incumbent on the plaintiff, after proof of defendant’s request to him, to negative the existence of a special or written contract, especially by producing an alleged contract between the defendant and another person, to which he was not a party, and which did not appear to have been in his possession.
    3. That although the plaintiff was not at liberty to give evidence of the contents of a written document, without producing it, yet, as he did not attempt to do this, it was altogether competent to him, after proving the request of the defendant, to go into evidence of work and labor rendered, and materials furuished, pursuant to that request; and that his Honor erred in excluding such evidence.
    4. That, for other reasons, the refusal by his Honor to admit the evidence offered by the plaintiff, was contrary to law.
    
      Bailey Brewster, for the motion Petigru Sf Hunt, contra.
   Curia, per

Wardlaw, J.

If the plaintiff, in assumpsit for work and labor, prove a special agreement and the work done, although the work may not be pursuant to the agreement, yet if it had been accepted or enjoyed by the defendant, plaintiff shall recover on the quantum meruit, for otherwise he would not be able to recover at all. Bul. N. P. 139. The amount of recovery in such case should be, not the price agreed on, nor the value, as if there had been no special agreement, but the price agreed on, subject to the deduction of so much as it would take to alter the work so as to make it correspond with the specifications of the agreement. 1 M. & Rob. 219.

In the case before us, the contract with Sessions may have been adopted by the parties as part of their agreement ; but the plaintiff was not bound to produce it. He might have recovered simply upon proof of work done and materials furnished. As matter of defence, the defendant might have produced the contract. If by its terms, as adopted by these parties, the right of action had appeared to be destroyed, then it would have been a bar; otherwise it might have served to mitigate damages, and have been referred to in like manner as would have been a plan and estimate in a printed book, or a house in a neighboring street, which the parties, by their conversation and agreement, had adopted as a standard of prices or of workmanship.

Let the non-suit be set aside, and a new trial be ordered.

Richardson, O’Neall, Evans, Butler, and Frost, JJ. concurred.  