
    AMES AND BUCKINGHAM v. SLOAT.
    Special contract — breach—recovery—when ended may recover on common counts — suit against one and judgment against two — verdict without damages — costs on a partial reversal.
    A party cannot recover on a special contract without a breach of it is proven, but if the contract has been put an end to, or been waived, or performed, or rescinded by the conduct of the parties, he may recover on the common counts.
    When the original suit and judgment is against A, who alone appeared and appealed, and a declaration is filed in the appellate court against A. and B. •while A. alone pleaded, and was tried and the judgment was against the defendant, the record is not sufficiently certain to be sustained.
    A verdict for the plaintiff in assumpsit without assessing any damage is not good, as laying no foundation for a judgment.
    Judgment reversed in part, costs divided equally.
    Error to the Common Pleas. Sloat declared in assumpsit for work, &c.; and on a special contract for the sale of twenty cords of wood *at $5 per cord. On the trial of the issue of non assumpsit, [578 the court was asked by the defendant to instruct the jury, “ that the plaintiff could not recover on the special contract declared upon, and were not liable unless a breach of it was proven.” The court refused to give this charge, but instructed the jury, “that if they found the special contract had been put an end to or rescinded by the conduct of the parties, the plaintiff might recover on the common counts what was justly due.
    The jury found that, “ the defendants did assume as alleged”— the court rendered judgment for the damages assessed as aforecaid, and $45.85 costs.
    
    An exception was taken to the refusal and charge of the court, and both are now assigned for error, as also the common errors.
    
      Strait and Hawes for the plaintiff in error.
   BY THE COURT.

We think, that both in refusing to instruct the jury as the defendant asked, and in instructing the jury as the court "did, they were l'ight: (5 O. 351, 386.) But the verdict assesses no damages, and there is therefore no foundation for the judgment, as the finding is imperfect. Again it appears that the original suit before the justice,.was carried on against Ames. He alone appeared; against Aim the judgment was rendered, but the transcript does not show whether the process was served on him only. The declaration was against Ames and Buckingham, the plea by Ames alone, and the trial was alone had with him; yet the verdict and judgment is against the defendants in the plural. This record attains to too little certainty to be sustained. The proceedings since the filing the appeal from the justice, are reversed, but affirmed up to that time, and each party under our laAV will pay half the costs of this writ. This operates a just punishment for their carelessness.  