
    Hardy Wooten vs. Daniel Read, Administrator of James Brown, deceased.
    If parties enter into a special contract, by which one agrees to do certain labor, and furnish certain materials, and the other agrees to pay a certain sum, the laborer cannot abandon the work before it is completed, and recover for what he has done, in indebitatus asssnmpsit.
    
    In such case, if the party who abandons the contract, has furnished lumber, which is afterwards used by the other party, he can recover the value of the lumber.
    In error from the Carroll circuit court.
    . James Brown sued Hardy Wooten in an action of assumpsit, for work and labor. Brown died before trial, and the suit was revived.. The declaration contains an account in indebitatus assumpsit, and one of quantum meruit. The amount sued for was $147.58. The verdict was in favor of the plaintiff below, and judgment was entered accordingly. Motion for new trial was made, and overruled, andexceptions taken. The bill of exceptions presents this case, that on the trial below, the defendant proved a special contract: Colin Wooten, witness for defendant, stated that Brown had made a special contract with defendant, Wooten, and they called on him to witness it. That according to this contract, Brown agreed to furnish materials, and build a good double log-cabin, and defendant agreed that if Brown would do so, he would pay him the sum of three hundred dollars ; that Brown entered on the performance of the contract, and furnished some materials, when Jones had process of garnishment, issued and served on the defendant as debtor of Brown’s. And when this occurred, Brown declared that he would abandon the contract, and would work no longer; that his creditor, Jones, would get the price of his labor, and he could get nothing ; that the defendant urged Brown to remain and perform the contract; that Brown still refused and left the work not half finished. Rattiff, a witness for plaintiff, stated that he had heard the defendant urging, and requesting Brown to go on and perform the work; that Brown declared he would work no longer; that if he continued to work for defendant, Jones, his creditor, would garnishee Wooten, and he could not get his wages himself.
    • The defendant then employed other mechanics, Messrs Leach and Rattiff, and agreed with them that he would give them Brown’s contract, to wit: that if they would build him a good double log-cabin, he would give them three hundred dollars. Leach performed the contract, for which defendant paid him the three hundred dollars. In the erection of the cabin, Leach used the materials that Brown had furnished.
    The counsel for defendant then requested the court in writing, to give to the jury the following charge; “ that if they believed, from the evidence, that Brown,had agreed with the defendant, to furnish materials and build the house, for three hundred dollars, and had voluntarily abandoned the contract, and failed to perform it; that he is not entitled to recover in this action.”
    This charge the court refused to give, and defendant’s counsel excepted and reserved the point.
    The court then gave to the jury the following charge; “ that if the jury believe, from the evidence, that the contract covenants were mutual and dependent, they would find for defendant; but if they believe, from the evidence, that they were mutual and independent, they should find for plaintiff the value of his services.”
    To this charge, the counsel of defendant again excepted, objected, and reserved the point.
    Motion was entered for new trial:
    1. That the finding of jury was against the law and evidence.
    2. Error of the court refusing to give charge asked.
    3. Error in the charge given to the jury; which motion was overruled.
    
      Sheppard, for plaintiff in error.
    The facts presented by the bill of exceptions-,' -most clearly show that the plaintiff had no cause of action. ■ And-the judgment of the court was against the law as recognized and settled in many adjudged .cases. See 8 Cowen Rep. 63.' Jennings v. Camp, 13 Johns. Rep. 96. Mc.Mellan v. Vanderlip, 12 Johns. Rep. 166. Faxon v. Mansfield, 2 Mass. Rep.147. - -
    
      2. The court erred in refusing to give the charge asked for by defendant. The special contract was in full force, not waived or abandoned by defendant, qnd he had a right to insist on a strict performance before the plaintiff could recover.
    3. The charge given to the jury referred to them a question of law, which it was the province and duty of the court to have determined, and was therefore erroneous.
    
      W. G. Thompson, for defendant in error.
    The plaintiff proved before the jury that his intestate had prepared and furnished a considerable amount of materials for the house he had contracted to build. This contract, it is true, he abandoned. Nevertheless, the defendant used the materials which had been provided, and for that the plaintiff was entitled to compensation. This action was not brought upon the original special contract, but for compensation for materials provided by the plaintiff’s intestate, and which the defendant used in the building of his house. When the plaintiff’s intestate abandoned the-special contract, supposing that he lost all legal claim to compensation for what he had done in part performance, this surely gave the defendant no right to use the materials provided by the plaintiff’s intestate, any more than his other property. This is not at all like the case of a special contract for building a house, and the builder departs from the plan agreed upon, and executes work, which is valueless, to the other party. Allowing that in this case the whole contract was at an end, when the plaintiff’s intestate abandoned the work, the law will presume an undertaking and promise on the part of the defendant to pay for the materials furnished by the other party, and used by the defendant in building the house after the special contract was ended.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

One Brown, in his lifetime, instituted this suit, declaring in indebitatus assumpsit for work and labor, against Wooten, the plaintiff in error. Pending the action, Brówn died, and the suit was revived in the name of Reed, the administrator. On the trialj it was proved that Wooten and Brown entered into a special contract, by> which Brown agreed to furnish the materials, and build for Wooten, a good double log-cabin. After having worked some time iri getting the materials, and preparing them for the building, he declared that he would abandon the work, and did so before it was half finished. Wooten employed other mechanics, and gave them the same price he had agreed to give Brown, and they finished the house, using the materials which Brown had prepared.

On this state of the evidence, the counsel for the defendant in the court below, requested the court to charge the jury that if Brown had agreed with the defendant to furnish materials and build the house, for three hundred dollars, and had voluntarily abandoned the contract and failed to perform it, he is not entitled to recover in this action, which charge the court refused to give.

In this the court erred. The rVitness stated that the parties made a special contract, and called on him to witness it; by this contract, Brown agreed to build for Wooten, a house of a particular description, and find the materials, for which Wooten agreed to pay him three hundred dollars. This was a special agreement. The one was to do a particular thing and furnish the materials for the work, for which the other was to pay a certain sum. The case at bar is not distinguishable from the case of Jennings v. Camp, 13 Johns. R. 94, in which it was held that if parties enter into a special contract, by which one agrees to do certain labor, and the other agrees to pay a certain sum, the laborer cannot abandon the work before it is completed, and recover for what he has done, in indebitatus assumpsit. The case of Lantry v. Parks, 8 Cowen, 63, is also a precedent in point. The performance of the work constituted a condition precedent to the plaintiff’s right to recover, the contract being entire. The work was abándoned against the consent of Wooten, who gave the same price to ^other workmen to complete it. Where there has been a special contract, the common counts cannot be resorted to, unless the contract has been completed, and nothing remains to be done but to pay money. Nor can the plaintiff recover on the special contract, because that was abandoned. 2 Phillips’s Evidence, 108.

For the plaintiff in error it is contended that he was entitled to compensation for his materials. This seems reasonable, but the evidence does not show whether Wooten had any agency in appropriating the materials, or any knowledge that they had been used. It is said they were used by the mechanics who completed the job. If they took upon themselves to use the materials, without Wooten’s consent or direction, the responsibility may rest on them.

Judgment reversed, and a new trial granted.  