Thomas v. Ellis & Co.

GOLDTHWAITE, J. The evidence which was before the jury when these charges were given, is not stated, and therefore it is doubtful whether any injurious results flowed from them; but the charges are entirely affirmative, and therefore the rule laid down in Peden v. Moore, [1 S. and P. 71,] where it was held that injury would be presumed when error was shown in such a charge, although the evidence was not stated iti a bill of exceptions,must govern. If we understand the position assumed by the County Court, the instructions to the jury were, that the plaintiffs could not recover on the common counts of the declaration, unless they proved a special contract, subsequent to, and distinct from, that declared on in the first count. This we think is hot a correct exposition of the law applicable to such a case as this most probably was upon the evidence. If it was shown that the special contract was not substantially performed, no recovery could be had on the first count, as its performance is there asserted, and it is upon this performance that the plaintiffs predicate their right of action : but the proof failing in this respect, it does not follow that they must be precluded from a recovery under the common counts. Indeed, nothing is more common than to permit a recovery upon an implied contract to pay the value of the labor, although it may not have amounted to a performance of the special contract; and this is always the rule when the defendant has accepted the work, or entered into possession and use of the [110] house actually erected. [Haywood v. Leonard, 7 Pick. 181; Thornton v. Place, 1 M. and Robinson, 218; 2 Stark. Ev. 97, n. 1.] The authorities just cited, show'that a recovery can be had on the common counts, although the special contract has never been performed. The charge of the County ¡Court was therefore erroneous, and the judgment of the Circuit Court reversing it must be affirmed.