
    RICHARDSON vs. ONEAL.
    Although the plaintiff may waive a special contract in his declaration and give it in evidence unde1»’ the common counts; yet he cannot prove materials furnished under an account for work and labor done»
    BRIEF OF J. HENDERSON, ESQ.
    It is not questioned by the appellant, but the authorities are somewhat multiplied, going to show that, where there has been a special agreement, the terms of which have been exeuted by the party who seeks its enforcement, should he fail to prove the special contract, as declared on, he may recover on the common counts, if the evidence offered is adapted to sustain them — “supposing there had been no special contract” on the subject.
    Yet, were this question res integra, or if not concluded by the decision of this court formerly made, I should insist that a party could not desert his special contract under any circumstances; see 18 J.R., 456; 13 do., 94 to 97; 1 Bibb, 172; 1 Tyler, 182; 12 J. R., 275; 14 do.', 326 ; 2 Term Rep,, 104.
    But the question now before the court is — not whether a party shall be bound to rely upon his special contract, exclusively for recovery, but,— Firstly: Whether he shall not declare on his special count?
    Secondly: How far proof of a special contract shall be applied to support the common counts? and
    
      Thirdly: Whether or not proof of the special contract in this case thai “plaintiff should build defendant a gin, and find all the materials, and defendant should board all plaintff’s hands, while building the gin, and pay him in addition therefor, $350, is pertinent proof, under the common counts for work and labor in building a gin, without any count or charge in the same,for any materials furnished, whatever?
    The reason indicated by the first point is obvious to all, and constitutes two of the first principles in pleading, viz. that the party called into court shall be advised by the plaint, as to what he is required to answer, and defend himself: and, also, that the record and proceedings shall be sufficiently explicit in exhibiting the subject of controversy, as to furnish evidence in bar to any subsequent action, for the same cause in point of fact; 10 J. R.; Doug. 24'; 4 Bos. & Pul., 351; 2Mumf., 345; 1 Bibb, 595; 5 Mass., 391; 4 Cr., 239; 4 East, 148-9; 3 Bos. & Pul., 584.
    The fact, too, is of no little weight that this form of declaring, (i. e. of setting forth the special contract) has been usual, where the question of recovering on the common counts has arisen; see 10 J. R., 37; 7 do., 133 ; 13 do.,96-7; 12do., 274,14 do., 326; 18 do., 451; 5Mass., 393;4 and 6 East.
    Second point we think sustained by the cases quoted, which require the proof to be such that, if there had been no special count, it would have been adjudged sufficient, and applicable to the common counts. Does proof of this special contract resemble the counts in this'narration? See 2 Stark. Ev., 95 and 96; and note of cases before cited.
   OPINION OF THE COURT — by the

Hon. J. BLACK.

With respect to the objection that the defendant had promised to pay a specific price, for the making and building a gin head, there is no doubt that, after the performance of a contract, the plaintiff is not compelled to declare on the special contract, but may rely on the general counts, when a recovery might be had, without the aid of the special count; and the sum specially agreed on may be given in evidence to fix the quantum of damages; 10 John., 36.

But, if a plaintiff elects to proceed on the general counts, they must be etch as will suit the nature of his demand: he cannot, under a count for Work and labor, recover money paid, laid out and expended, and so vice versa.

The plaintiff, in this case, under the counts for work and labor, proved •materials furnished in building the gin head. If he wished to give in evidence the materials furnished, he should have inserted a suitable count in his declaration. Materials furnished cannot be given in evidence under the count for work and labor. There having been a special contract between plaintiff and defendant, by which he was to pay defendant ‡350 for building a gin head, makes no difference.

If the plaintiff had thought proper to declare on the special contract, he might have done so; but plaintiff waiving the special agreement, and going on the consideration, should show a demand, suitable to the nature of the declaration. The court erred in permitting the defendant to give any evidence of materials furnished, under the count for work and labor. An objection was urged on the argument, on the ground that there is no item in the account filed, charging the materials, but determining the case on general principles, independent of the statute, it is not necessary to say whether the general charge “to one gin head,” is sufficient or not.  