
    Allen vs. McNew.
    1. Indebitatus assumpsit will be to recover the price of labor upon an executed contract payable in money, though a special contract be proven, where the special contract has not been .performed in all its terms by either of the parties.
    2. The plaintiff declared for the value of labor done and materials furnished in the erection of a grist-mill, mill house and appendages. The proof showed that there was a saw-mill built, and that it was attached to the grist-mill. The jury gave a verdict for the labor and materials of saw-mill. And the court holds, that it will not reverse, where the justice of the case was obtained, upon a descriptive part of the declaration, as the proof showed, in the case exhibited, the saw-mill was an appendage.
    3. Where a mill-wright, who had contracted to build a mill, put it in operation, and before delivery ground grain and received toll therefor. Itis held, that in an action for the price of erection, the value of the toils could not be regarded as a set-off, or in abatement of the price. That would be the subject of a distinct action.
    •4. Where the answer made to a bill, filed for a discovery, is introduced as testimony, its truth should be weighed like other testimony, by its intrinsic character, subject to be set aside by the nature of its statements and by other proof.
    5. Where a defendant purchased notes upon the plaintiff, he had a right to use them as a set-off against the plaintiff in an action for labor done without a written assignment of such notes by the payee to such defendant.
    This is an action of assumpsit, instituted in the circuit court of Greene county, by McNew against Allen.
    The plaintiff declared for work and labor done, in the building and finishing a grist-mill and house, with their appendages, and for materials provided.
    The defendant pleaded non-assumpsit, and gave notice that he would on tidal give evidence of a set-off, to wit, the price of provisions purchased, goods sold and delivered, money paid, and notes against the plaintiff, which defendant had purchased and owned.
    
      The trial came on at the October term, 1846, and the evidence was introduced to a jury under the direction of judge Lucky. It appeared that McNew was a millwright, and agreed for the sum of sixteen hundred dollars, to erect on the land of the defendant, Allen, a grist-mill and saw-mill and mill-house, and that the price was to be paid in money, provisions, goods, &c. There was no written contract, and there was some contradiction in the testimony as to its exact terms. Some money was paid previous to the suit, some provisions, and each of the parties had in some respects failed to comply with terms which had been, according to the proof, agreed on. There was proof, that the work was not put up in a workmanlike manner, and there was proof that it was. The saw-mill was attached to the grist-mill by a floor leading from one to the other. The end of the saw-mill came up to the gristmill ; the same floor extended through each, and the same dam supplied both with water. After the completion of the gristmill, and before it was delivered, McNew set it to grinding and received'toll for about the period of two months. Allen claimed the toll, and McNew refused to allow it to Allen, as he had not at that time completed the whole work. The work was subsequently delivered to Allen, arid by him received.
    The defendant produced as a set-off notes which he had purchased, executed by McNew to third persons. There was no written assignment on the notes to the defendant.
    The defendant introduced as evidence a transcript of a record of the chancery court at Greenville. This record contained a bill of discovery filed by Allen against McNew, with a view to procure evidence of the character of the contract in regard to the building of the mill, and amount of money paid under such contract, the goods and provisions delivered, and their value, and the existence of certain notes executed by McNew, and his liability to pay them,' or allow them as a set-óff against his claim for work done, and materials furnished. The answer of the plaintiff, McNew, was introduced, in which he states, that the work had been done in a workmanlike manner; that it was not done within the time agreed up'on, because the defendant had not complied with his portion of the contract, in furnishing labor, materials and money, as he had agreed to do; and that the contract had not been in other respects complied with on his part, becaus.e the defendant had not furnished him with the means of so doing. He admitted the execution, but denied his liability on some of the notes, charging that they had been fraudulently obtained.
    The charge of the presiding judge, Lucky, is as follows:
    “It is contended by the counsel for the defendant, that the plaintiff cannot recover in this case, because there was a special contract between the parties. If there was a special agreement, and the work was fully completed before the institution of the suit, and the time of payment had elapsed, and the payment was to be made in money, the plaintiff may recover on the common counts, although he may not have set out the special contract in his declaration. In such a case the consideration is past and executed. If, however, there was a special contract between the parties, and the work was to be paid for, not in money, or not all in money, but part in trade, there the plaintiff must set out the special contract or agreement in his declaration, and cannot recover on the common counts. Whether there was a special contract at all in this case, is a question of fact for the jury. It is said that the defendant should have specially pleaded that it was a trade contract, and the want of demand and notice — the case referred to, is unquestionably sound law. In my judgment it does not apply to this case. The plaintiff may also recover on the common counts for work and labor done, and also for materials, though there was a special contract, where the work was actually done, but not within the time, or in the manner specified in the contract, if such work' was done with the approbation of the defendant, or was accepted, or approved by him after it was done. If the work was done under a special contract, and the payment was to have been made in money and the time of payment had expired, and the work was done defectively, the defendant may show such deficiency in mitigation of damages, and the measure of the deduction will be the amount it will take to make the work good, compared with the special agreement. Another point upon which it is insisted the plaintiff cannot recover, is for the work and labor done, on the saw-mill and dam, because there is no allegation in declaration, except for the building of a grist-mill and mill-house and their appendages. The declaration must describe Avith reasonable certainty the work and labor for which the plaintiff sues, and the evidence must be confined to the allegation. A man cannot sue for building a dwelling and recover for building a mill, or a cotton factory, or any other building but a dwelling-house. Nor can he sue for building a grist-mill and recover for building a saw-mill. It is said, however, that the word appendages includes a saw-mill and the mill-dam. If a saw-mill is an appropriate and necessary part of a grist-mill, and without which it cannot properly perform the purposes for which it was erected, then he may recover under the general description of appurtenances, otherwise he cannot. And the same principle applies to the dam. If they are distinct buildings, having no necessary connexion with the mill-house, there can be no recovery for the work and labor done on them under the description in this declaration.
    It is argued by the counsel for McNew, in this case, that even if it is established by the evidence, that there was originally a special contract between the parties, yet that it is also shown that this special agreement was departed from and abandoned by the parties. If the parties originally entered into á .special agreement, and afterwards abandoned their contract, either by consent or by such acts and circumstances, on the part of one or both, as showed that it was their intention to lose sight of and waive their original terms and stipulations, and the plaintiff, McNew, went on and executed the work, and the defendant accepted the mill and derived a benefit from it, then and in that case the plaintiff will be entitled to recover the reasonable value of his work and labor on the mill upon the common counts.
    As to the set-off. The defendant is entitled to a set-off for any debt or demand which he may have had against the plaintiff at the time this suit was instituted; any payments of bacon, grain, or money, made by the defendant to plaintiff on account of the work, he should be credited for. It is said the. notes to McBride and others cannot be offered as a set-off. If the legal interest in those notes wére vested in the defendant before the institution of this suit, and were then due and owing, they may be set-off in this case. If the plaintiff agreed that Allen should purchase any of these notes, and he did so in pursuance of the agreement, there can be no question. If Allen agreed to purchase them for a sum less than they called fox*, the set-off can only be for that sum. If the plaintiff, Mc-New, used either the grist or the saw-mill before they were finished, without the consent of Allen, such use and occupation cannot be given in evidence as a matter of setoff. He may have been guilty of a trespass, for which he would be liable in tort. Neither can it be looked to in mitigation of damages. You may give interest if you think proper.
    In looking at the answer of McNew, you will look to the whole of it, and give it such weight as you may think it entitled to. It would not be light to take a particular part without its appropriate connexion and relation to other parts and to the bill to which it refers. The answer will be taken as true unless contradicted by two witnesses, or by one witness and corroborating circumstances.”
    
      R. J. McKinney, for the plaintiff in error.
    1. Plaintiff cannot recover on the declaration as framed— should have declared on the special agreement. The agreement, is fraud. 2 Greenleaf’s Ev. sec. 103-4; 1 Stephens’ N. P. 299, 304 and onward.
    2. Plaintiff cannot recover, because of the variance in the allegation and proof, both as tó the consideration and promise. 1 Steph. N. P. 307; 6 Term Rep. 326; 1 Steph. 300; 1 Chitty’s PI.
    3. In any aspect of the case,'plaintiff not entitled to recover for the saw-mill.
    4. If plaintiff is entitled to recover at all, it should only be to the extent of the actual benefit conferred on the defendant by the work, labor, &c. done in the erection of the grist-mill. 3 Hump. 60; Steph. N. P. 307. The employer contracts for the skill and judgment, as well as the labor of the person employed. 1 Stepli. N. P. 304.
    5. The charge of the court is erroneous in regard to the notes offered as a set-off.
    6. The court erred in respect to the effect to be given to. the answer to the bill of discovery. See Cowen & Hill’s notes; 3 Phill. Ev. P. 927.
    7. The court erred in holding, that plaintiff might recover if the mills were accepted. And also in holding, that if the contract were abandoned the plaintiff might recover on the common counts the reasonable value of the work and labor done. In either case, plaintiff could not, on the declaration as framed, recover for the saw-mill, forebay, &c.
    
      
      T. A. R. Nelson, for defendant in error.
    The work done on the saw-mill and dam could properly be given in evidence under these counts, and even if the declaration had not shown what sort of work was performed, 1 Chit. 349 m. The words “grist-mill,” “mill-house” and “mill,” were amply sufficient to embrace both improvements. The words “grist-mill” are sufficient to embrace all the work done in building the house and dam. Angelí on Watercourses, 39; 41,42.
    The words “mill-house and its appendages” are sufficient to embrace the saw-mill: the saw-mill was, in point of fact, connected with the grist-mill, and therefore, an appendage to it. The declaration does not describe it as “a necessary appendage,” and the court erred against defendant in error in requiring that to be proved. 1 Chitty’s PI. 323, margin, and 329. •
    2. As to the special contract. — The charge upon this point was altogether favorable to the plaintiff in error.
    
      Indebitatus assumpsit may be maintained for work and labor done, even where there was a special contract, on a past or executed consideration. 1 Chitty’s PI. 316, 317, 372, 373, 382 margin. Norment v. Hull, 1 Hum. 320. 8 Wheeler’s Com. Law, 529.
    It is alleged, that defendant in error was to build a-first rate merchant mill, and did not. If this is so, he could not have recovered on a special count. 1 Stephens’ N. P., 299, and note.
    It is insisted that the special contract was abandoned: 1st. as to writing; 2. as to time, and 3. as to hauling to be done by Allen.
    It was only necessary to state in the declaration, the matters in the contract of which we complained. 1 Stephens’ N. P. 369,370, 372, 573, 374, 377. 1 Chitty PI. 344-5, margin.
    As McNéw did not finish' the work either in the time or manner agreed upon, he could sue on the common counts for 'the value of the work done. Porter v. Woods, Stacker & Co. 3 Hum. 56. Elliot v. Wilkinson, 8 Yerg. 416. Chitty on Contracts, 169, margin.
    3. The circuit court merely charged the jury that we were entitled to recover, without saying the amount originally "agreed upon, if Allen accepted the work. We insist that, Allen was liable for the full value of the work. 1st. Because he accepted the work and paid part of the price. 1 Stephens’ N. P. 306, and notes — and 2. Because he derived a benefit from it. 1 Stephens’ N. P. 326-7, and note, and 308. Also, 298, note. 1 Chitty’s PL 349, m.
    4. As to the set-off of the' notes — these were not mutual debts, and the legal interest was not in Allen. See 2 Hum. 71, and 2 Yerg. 258.
    5. The use and occupation of the saw-mill could not be relied on in mitigation of damages. Debt could only be maintained at common law for use ’and occupation, except where there was an express contract. 3 Stark. Ev. 1511. The claim for use and occupation is not such a mutual debt as is contemplated by our act on the subject of set-off.
    We admit that, according to the case relied upon, Porter v. Woods, Stacker & Co., 3 Hum. 60, if we failed to perform our contract, the plaintiff in error could ‘abate our recovery by the damages he sustained on account of the non-performance of our portion of the agreement.’ He would, in the language of that case, page 61, be entitled to such damages as, in a cross action by him against the plaintiff, he ought to recover for the non-performance' by the other of his portion of the agreement. But we insist that this case does not apply, because the cross-action here referred to, is a cross-action, originating in, and springing out of the original contract- If in that case, the court refused to allow damages for “delay in business, for injury in reputation, for speculative profits, for expense incurred in trips to the Cumberland furnace” — how ’ could a claim here for use and occupation, a matter having nothing to do with the original contract, and originating long afterwards, be allowed? McNew, in the original contract, made no agreement, express or implied, in regard to it, and how can it be set-off. It is true, that in Porter v. Woods, Stacker & Co., this court granted a new trial in order to allow the plaintiff to prove damages sustained by reason of the inferiority of the castings, and of procuring points or other castings at a higher price; but both of these things were necessary consequences, growing out of the failure on the plaintiff’s part to comply with the original contract. Here it was Allen’s business, by the terms of the contract, to furnish the machinery, and he did* not, in point of fact, get such machinery as McNew directed. That he failed in this respect, he thought, was fully established.
    6. As Allen did not perform his part of the special contract, by delivering the materials, and furnishing flour, bacon, &c., when wanted, McNew had the right to treat the contract as rescinded. 3 Plum. 62, note 2. Chitty on Contracts, 276, and notes. As to Allen’s non-performance, that was established by the testimony of various witnesses.
    7. Although the circuit court, on the introduction of McNew’s answer, held that the whole proceeding in chancery should be read, yet, in the charge to the jury, he merely directs them to look to the whole answer, and excludes the idea of taking a particular part without its appropriate connection and relation to other parts, and to the bill to which it refers And in this we insist there is no error,' because the defendant had the right to have the whole answer read. 1 Starkie’s Ev. 334, 335. 1 Philips’ Ev. 264 of old edition, or 359 of edition of 1839 — and 3rd vol. same, 926 and 924; Lawrence v. Ocean Insurance Co., 11 Johns. 260, margin. Peake’s Ev. 55, 57, Lynch v. Clerk. 3 Salk. 153, Rue v. Ferrans. „ 2 Bos. & Pul. 548, note. 1 Caines’ Rep. 158, note.
   Reese, J.

delivered the opinion of the court.

McNew is a millwright, and built a grist-mill, saw-mill, dam, &c. for Allen. McNew sued Allen to recover an unpaid portion of the price of his labor, and did recover a verdict and judgment; to reverse which Allen has prosecuted his writ of error to this court; and here various grounds of error have been assigned in argument. 1st. That the action should have been brought upon the special agreement stated in the proof upon the record, and will not lie upon the indebi-tatus counts merely, because, by a term, of the agreement a portion of the price was to have been paid in property. We think this ground of error is not well sustained, because, the action is brought to recover the price of labor done, and upon an executed contract, in which the labor done is due in money; for although a part of the price was payable by a term of the contract in provisions, that was meant only pending the construction — and the structure being completed, no provisions are due, but money only; and because, secondly, the stipulations of the special agreement were not fully complied with on either side, and were in part virtually abandoned, so that, on that ground, the suit may be maintained on the common counts, and plaintiffs need not have declared on the special agreement. 2d. It is assigned as error that plaintiff below was suffered to recover for the price or value of labor done upon a saw-mill, which, although conclusively proved, as embraced in the contract, is not enumerated in the descriptive portion of the declaration, which states the character of the labor, unless it be comprised in the terms grist-mill, mill-house and appendages. The court left it to the jury to say, whether a saw-mill in general is a necessary appendage to a grist-mill; — informing them that if it were not, plaintiff ought not to recover any thing for the saw-mill. It is insisted that there is no error upon this ground, because the court should not reverse the judgment, where the recovery was according to the contract, and the justice of the case, upon a mere objection to the descriptive part of the declaration. Again, it is insisted, that the word “appendage” in the declaration is not to be referred to the appendages in general to a grist-mill, and which belong necessarily to all grist-mills, but is to be understood as referring to the appendages in fact to this particular grist-mill, — and that the proof shows that the saw-mill was strictly such. There is much plausibility in this view of the matter, and, upon the whole, we do not feel at liberty to reverse the judgment, upon, this ground, in the aspect in which it presents itself.

3d. There was much evidence to show that the work was not done in a manner conformable to the stipulations of the contract; but the court charged the jury in accordance with the views of this court, on the subject of abatement of price, or recoupment in damages; and no error is alledg-ed upon that ground. Yet it is said, that the jury disregarded the charge of the court upon that point, and found a verdict against preponderance of testimony. Upon looking into the testimony, however, we are of opinion, that there is testimony, upon this point, upon which the verdict may be rested, and that we cannot, comformably to the rule prescribed by us, for our own action on the subject of new trials here, and to which rule we have inflexibly adhered, grant to the plaintiff in error a new trial upon the ground insisted on. 4th, It appears that when the grist-mill was so far completed, as that the stones for grinding maize or Indian corn could be put into operation, Allen refusing to accept so much of the work as had been done, McNew ground, for a considerable time, corn upon or with said stones and received toll therefor. Defendant below claimed a set-off or abatement upon this ground, but the court decided that it could not be allowed in this action, but if it constituted a ground of action or claim, in favor of Allen, he must assert it in a distinct suit. This opinion of the court we think is well founded. — The use of the mills, except on the ground of injury to the property produced thereby could not be embraced by the doctrine of abatement or recoupment, — and as matter of set-off, as it is for uncertain and unliquidated damages, it could not be enforced.

5th. There were certain notes for money given by McNew to third persons, and which Allen purchased, and for which he claimed a set-off.

As to this, the court charged that he cpuld not claim a set-off for the amount of the notes, unless he had a “legal ' title” thereto. This although true, is said in a manner and connection by the court, to import the necessity of a written assignment of the notes to Allen;--the phraselogy used by the court, as set forth in the bill of exceptions, was calculated to make that impression on the mind of the jury, and we think that, in this there is error. If he were owner of the notes by purchase and delivery, without written assignment, he would be entitled, other objections out of the question, to a set-off. 6th. In an answer to a bill of discovery, filed by Allen against McNew, and which was introduced as evidence by Allen, McNew stated, that these notes had been fraudulently procured, and that he was not equitably bound to pay the money mentioned therein.

The court ruled that the whole of the answer, not only must be read, but become evidence in the cause, and that it required the testimony of two witnesses, or of one witness, with strong corroborating circumstances, to countervail the statements of the answer.

This part of the charge is erroneous. The answer, indeed, must be taken together, but its truth before the jury should be weighed, Mice other testimony, by its intrinsic character, subject to be set aside, by what might be found in the answer itself, by the nature of the statement, or by other proof. What was said by the court, was calculated to mislead the jury, particularly as it related to the notes claimed to be set-off, when the allegation of the answer was not responsive to any thing said in the bill.

Upon these two last mentioned grounds we reverse the judgment of the circuit court, and award a new trial.  