¶1The statute of Ohio authorizes defendants to give notice of any matter, which, if pleaded, would bar the suit. The statute of limitations is a bar, and within the express provision of the statute. The evidence will be received.
¶2In arguing the case before the jury, Whittlesey, for the defendant, contended, that to take the case out of the statute of limitations, there must be an express promise to pay; and also, that if the special contract was not complied with in terms, the plaintiff could not recover. 1 Pet. 351; 11 Wheat, 13 John. 94, were cited.
¶3COLLETT, J. An acknowledgment to take a ease out of the statute of limitations, must be that the debt is a subsisting one. If a promise be relied upon, it must be an express promise to pay, or it will be unavailing. Such promise must be shown to the jury by the circumstances; 29 O. L. 215. Abare acknowledgment that the debt did once exist is not sufficient. The law will not, upon that alone, raise an implied promise to pay, to do away the statute. *85In general, when services have been rendered for another on a special contract, though not strictly according to its terms, the plaintiff may recover what the services are'worth, on the common counts. When the labor is upon land, and done upon a special contract, it would almost seem that it must be for the benefit of the *employer. There may be a difference, in case the contract pro- [85 vides that he is not to recover, unless the work is done according to the terms of the contract. On that point we are unable to agree.
¶4The jury not being able to agree upon a verdict were discharged.