
    Cushman vs. Sim’s Adm'r.
    In assumpsit fop one years services Us an overseer, and a quantum meruit for the same services — fle/d, that if there was a spe* cial agreement between the plaintiff and defendant for the plaintiff’s services as an overseer, the plaintiff couid not recover upon his declaration.
    Amead from Frederick county court. This was an action of assumpsit, and the declaration contained two counts — * The Erst for one year’s service by the plaintiff, (now appellant,) as an overseer, in the year 1791, rendered the intestate of the defendant, (the appellee,) and the other a quantum meruit for serving the intestate as an overseer for one year. The general issue was pleaded; and at the trial the plaintiff offered in evidence, that he had acted as overseer for the intestate during the year 1791, and proved the value of such services. The defendant then gave in evidence, on cross examination of the plaintiff’s witness, the declaration of the plaintiff, that he was to receive of the intestate a share of the crop made on the land for his services in that year, and that the plaintiff had received his share of the corn crop; but the defendant offered no evidence of a further agreement, nor of what share or proportion of the crop the plaintiff was to receive, or that the defendant had performed his part of such special agreement. The defendant then prayed the court to direct the jury, that if they were of opinion from the evidence, that there was any special-agreement between the plaintiff and the defendant’s intestate, for his services as an overseer for the year 1791, the plaintiff was not entitled to recover on the declaration in this cause; which opinion and direction the court, (Clagctt Cli. J.)' gave. The plaintiff excepted; and the Verdict and judgment being against him, he appealed to this court.
    The cause was argued before Chase. Ch. J. Buchanan, and Nicholson, J;
    Taney, For the Appellant,
    cited Payne, et al. vs. Batomb, 2 Doug. 651,
    
      Shaaff, for the Appellee,
    cited Ésp. 138, and Hannan vs. Lee, 1 Harr, & Johns. 131.
   The Court

said, that in the case of Payne, et at. vi. Bacornb, there was a count on a special' agréeméñt, and ether counts, and as no agreement was proved, the plaintiff was permitted to Recover on the other counts.

JUDGMENT AFFIRMED,  