¶1Opinion by
¶2This was an action of assumpsit for work done under a special contract. Pica general issue and set-off. Y erdict and judgment in favor of the plaintiffs below.
¶3On the trial the defendant below requested tbe court to instruct the jury that unless they find from the evidence that the written contract has been abandoned, the plaintiff cannot recover in this action any thing more than for the extra work they may have performed for the defendant. It is objected that tiie court erred in refusing this instruction and in directing the jury that if they were satisfied that the plaintiffs had executed the contract, and if the evidence was otherwise sufficient, they could recover under this form of action.
¶4It appears that the work under the direction of the defendant below, was not performed within the time and stipulations of the contract; still it was accepted by the defendant. The declaration is not upon the contract specially; it is in indébitatis assumpsit, with several common counts, and it is objected that plaintiffs could not recover on the contract under such a declaration, because under the contract tiie work was to ,be paid for, partly in money and partly in property. Greenl. Ev., §§ 78, 103, and 104 *506But from tbe record, it must be presumed that tile defendant refused payment of the property as well as the money, and therefore the plaintiffs were entitled to recover the entire amount in. money.. It became a cash demand by the refusal and neglecfrof defendant to fhrmsli the property, and could' be sued and declared on accordingly. Wiley v. Shoemak, 2 G. Greene, 205. In Payne v. Couch, 1 G. Greene, 64, it was held that a note payable in property is admissible, in evidence under tile common or money counts;. Morris, 187; 4 Wend., 285, 575; 2 McLean, 218; 7 Wend., 311; 4 Con., 560.
¶5There is nothing in the record of this ease (hat would seem to render the instruction necessary or applicable to the evidence and pleadings. Nothing to show that the validity of work performed under the written contraes eould npt be-recovered- under the common counts, nothing to show that "the court was not justified in regarding the balance due-as a money demand, and consequently is no error disclosed by the refusal to give the instruction asked, and hy giving the instruction as modified.
¶6Had the work-been performed according to the stipulations of the contract, it should have been declared on spe--, cially, but as there was a material departure from that con-, tract by defendant’s direction, the plaintiffs were prevented, from performing according to its stipulations, and as they-consequently had no-direct remedy on the contract itself' they might sue in indebitatis assumpsit, and introducá the contract as evidence to- regulate the amount to be paid so far as it could be made applicable to the work performed, 4 Con., 560.
¶7Judgment affirmed,.