majority">Waite, J.

The defendant in this case claims, that if the work was performed under a special contract, variant from that stated in the first count in the declaration, the plaintiff cannot recover, either upon the first count, by reason of the variance, or upon the others, because they are general. The rule upon this subject is very correctly stated by Mr. Chitty, one of the most accurate of the elementary writers upon law. “ With respect to debts for work and labour or other personal services, it is a rule that however special the agreement, if it was not under seal, and the terms of it have been performed on the plaintiff’s part, and the remuneration was to be in *562money, it is not necessary to declare specially, and the com ^011 incicii¿(a(us count is sufficient.” 1 Chitt. Plead. 332. ^n(j ¡t jg also settled, that the plaintiff is entitled to recover on the general count, where the work has been performed, although he has declared on a special agreement, and failed in the proof. 3 Stark. Evid. 1762. 1 Selw. N. P. 82. In the case of Alcorn v. Westbrook, 1 Wils. 117. Dennison, J., says, if a man agrees to built for another a house, and after-wards builds it, in this case he has two ways of declaring, either upon the original executory agreement, as to be performed in future, or upon the indebitatus assumpsit or quantum meruit, where the house is actually built and the agreement executed. 1 Selw. N. P. 83.

Gibbs, C. J. in the case of Robson v. Godfrey & al. said: “ I have always understood the rule to be, that unless there be something in the terms of the special agreement, which either by express stipulation or necessary intendment, precludes the plaintiff from recovering for work and labour generally, he is entitled, after the contract has been executed, to maintain an action for work and labour done generally. It is every day’s experience that a party may recover on the general counts for work and labour done under a special contract.” 1 Holt’s N. P. Ca. 236. S. C. 1 Stark. Rep. 275. 277.

The supreme court of the United States, in the case of The Bank of Columbia v. Paterson, say : “ We take it to be incontrovertibly settled, that indebitatus assumjisit will lie to recover the stipulated price due on a special contract, not under seal, where the contract has been completely executed ; and that it is not in such case necessary to declare upon the special contract.” 7 Crunch, 299. And again, in the case of The Chesapeake and Ohio Canal Company v. Knapp & al., after repeating the rule as laid down in the preceding case, they add : “ Whether this doctrine be considered as established, by the adjudications of this court, or the sanction of other courts, it is equally clear, that no principle involved in the action of assumpsit, can be maintained, by a greater force of authority.” 9 Peters 566.

These authorities shew, most conclusively, that, upon well established principles of the common law, if the plaintiff has performed the work, according to the terms of the contract, he may recover upon the general counts for work and labour *563done; and that the addition of a special count setting forth a contract different in terms from the one proved, will not-affect his right to recover upon the general counts.

It has, however, been supposed, that the decision in the case of Russell v. South Britain Society, 9 Conn. Rep. 508. conflicts with the law of this case. But upon an examination of the two cases, it will be found, that they are materially different, and are decided upon different principles. There the plaintiff had subscribed to a fund for the support of the gospel ministry, which was to be managed by the society, in a certain specified manner. The plaintiff paid the amount of his subscription ; and the fund was received by the society, and managed by them, for a number of years, until the principal part was lost, by the failure of a bank. The plaintiff then brought his action against the society, and having failed to prove those counts in his declaration which set forth the contract made by the society, claimed to recover back the money paid, under the general count for money had and received. The court decided, that the plaintiff could not recover, upon the ground that the contract had not been rescinded by the defendant, but remained an open subsisting contract. The court did not intend to establish any new principle, but expressly referred to a rule well settled, and to a decision of Lord Mansfield, and to a subsequent decision of the court of King's Bench in support of it. The rule that governed in that case, is thus stated by Mr. Chitly: “ Where a payment has been made on a contract, which has been put an end to; as where, either by the terms of the contract it was left in the plaintiff’s power to rescind it, and he does so, or where the defendant afterwards assents to its being rescinded, the general count may be supported; but if the contract continue open, as it is technically termed, he can only recover damages, and must declare specially.” 1 Chitt. Plead. 342.

The same rule was explicitly recognized, by the supreme court of the United States, in the case cited from Peters' reports. They there say, that there can be no doubt that where the special contract remains open, the plaintiff’s remedy is on the contract, and he must declare specially. They afterwards add: “ And it is a well settled principle, that when a contract has been performed, a plaintiff may recover on the general counts.”

*564They thus recognize both rules as well settled and undoubted, and not at all inconsistent with each other.

The court, in the case cited from Connecticut reports, were of opinion that, as the money was paid upon a contract that remained open and unrescinded, the plaintiff was entitled only to damages for the non-fulfilment of (hat contract; and must, therefore, declare specially. In the case under consideration, the plaintiff having performed his contract, seeks to recover a compensation for his services — a debt due from the defendant for the labour performed. And if he has actually performed the labour according to the contract, there is nothing to prevent his recovering upon the general counts.

It is also claimed by the defendant, that the plaintiff could only recover upon the quantum meruit count, if the work was done under a contract different from that stated in the special count. If this were so, it is difficult to see how that would furnish any ground for a new trial, as the jury have found a verdict upon that count in favour of the plaintiff ■ and it does not appear from the motion, that damages have been assessed differently from what they would have been, had the verdict upon both the other counts been in favour of the defendant. But the rule upon this subject is, that under an indebitatus count the plaintiff may recover what may be due him, although no specific price was agreed upon. And where that count is inserted, the quantum meruit count is generally unnecessary. I Chitt. Plead. 327.

It has been further said, that the court should have charged the jury, that if the work was left unfinished, the plaintiff could not recover upon either count. This, we think, sufficiently appears from the charge stated in the motion. The instruction is, that if the work had been done under a special contract, and had not been completed according to the contract, or the contract had not been fulfilled on the part of the plaintiff, he could not recover upon either count. Clearly, nothing more could be necessary.

For these reasons, we think there ought to be no new trial; and so we advise the superior court.

In this opinion the other Judges concurred.

New trial not. to be granted.

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