¶1The opinion of the Court was drawn up by
¶2Assumpsit for iron work done for the defendant and for labor and materials and improvements upon the house and land of the defendant.
¶3In view of the whole evidence in the case, the tendency of different portions of which only is reported, the counsel for the defendant requested the presiding Judge to instruct the jury “ that, under such circumstances, the plaintiff could not recover for the labor thus done in part payment of the premises, nor for his item for betterments and repairs on the building,” which requested instruction the Court gave, and also instructed the jury that if there was a contract of sale of the premises, and the improvements were made under that contract by the plaintiff, on his own account, and the work done in part payment, that the plaintiff could not recover if the non-performance of the contract was through his fault; that if through the fault of the defendant, the plaintiff would be entitled to recover what his repairs were reasonably worth and for his bill for blacksmith work.
¶4This last instruction, which he did not call for, the defendant contends is erroneous, and insists if there was a contract, which the plaintiff was prevented from fulfilling through the fault of the defendant, his remedy is by a special action upon that contract, and not in assumpsit for labor performed and materials furnished.
¶5There is an apparent discrepancy between the requested instruction, which was given, and the one which immediately follows it, unless the latter be deemed, as it was probably intended, as a qualification of the former. If the qualification is in conformity with the law, then the defendant has no cause for complaint.
¶6*492The instruction is predicated upon the hypothesis that the jury might find that there had been a contract of sale of the premises from the defendant to the plaintiff, that the plaintiff had made improvements thereon under the contract, and had done certain blacksmith work in part payment therefor, but had been prevented from completing the contract by the fault of the defendant.
¶7There would seem to have been evidence on which to base such an hypothesis; and, also, that whatever improvements had been made by the plaintiff were made with the knowledge of defendant and without objection on his part.
¶8Every breach of a special contract, by one party, does not authorize the other to treat it as rescinded; but there are some breaches that do amount to an abandonment of it. There is not, perhaps, any precise rule, which, when applied to the breach of a contract, certainly settles the question whether it is thereby abandoned or not; but if the act of one party be such as necessarily to prevent the other from performing on his part, according to the terms of the agreement, the contract may be considered as rescinded by the other. His remedy in such case is upon the common counts. Dubois v. Delaware and Hudson Canal Co., 4 Wend. 285; Canada v. Canada, 6 Cush. 15; 2 Greenl. Ev. § 104.
¶9The instruction complained of was in strict conformity with this principle, and is well sustained by authority, and is certainly not inequitable, as the defendant now has his house with the improvements.
¶10Exceptions overruled and judgment on the verdict.