¶1The general rule in suing upon a special contract is, that a party cannot recover unless he shows that he has performed the contract substantially, or having performed part, and the balance waived or prevented by the other party, and the part performed has been accepted and appropriated. In either of which cases, he can recover for what he has done, the measure of damages being the contract price agreed to be paid in proportion to the whole work.
¶2When the suit is brought upon a general indebitatus assumpsit, for work and labor, the defendant may defend, by showing a special contract, and the plaintiff cannot recover unless he shows that, though the work was not done as by the contract, that it has been appropriated and enjoyed by the defendant, and in that case the special contract affords the rule of damages, so far as it can be traced and followed, less any amount the defendant may justly recoup for injury, for non-performance of the contract.
¶3There was contradictory evidence in this case, whether there was a special contract or not, and also if there was, whether the plaintiff has performed it, and though we might not have reached the same conclusions the jury did, we cannot say they have so mistaken the evidence as to justify our interference. As to the law of the case, it was stated correctly, in substance, by the court, in disposing of the various instructions. Though not strictly correct in some particulars, they could not have misled the jury in any way. All the facts were fully before them, and we are disposed to think they have done justice between the parties.
¶4The judgment must be affirmed.
¶5Judgment affirmed.