#### FREDERICK DOVER vs. PETER PLEMMONS.

Where a mat! contracted to work for another for six months, at eight dollars a month, and the hirer at the expiration of four months refusedt© pay the hire for those months, alleging that he was not bound to pay until the expiration of the six months, upon which the laborer refused to work any longer: Held, that the laborer was entitled to rseover for his four months work.

When the J udge charges, in an action for work and labor done, that work done on the land of the hirer, <! was necessarily beneficial,” he erred, if he stated that as a principle of law, and, if he stated it, as a matter of fact, he erred, because he had no right to state his opinion upon the matter of fact.

Appeal from the Superior Court of Law of Buncombe County, at the Spring Term 1846, his Honot Judge Pearsox presiding.

*24This is an action of assumpsit for work and labor done. The case is; the plaintiff, in the Spring of 1842, agreed with the defendant to work on his farm for six months, and the defendant agreed to pay him eight dollars a month for his work, one half in trade and the other half in cash —and the plaintiff was to find himself. The plaintiff worked four months, at the end of which time, he demand, ed the pay for the work he had done — which the defendant refused, insisting he was not bound to pay any thing, until the whole six months work was done — whereupon the plaintiff refused to work any more. Afterwards, in the fall, the defendant agreed, if the plaintiff would clear three acres of ground for him, he would take that, in the place of two months work, which had not been done under the original contract. To this the plaintiff agreed. The three acres were marked off and the plaintiff was to clear it by grubbing &c. After the plaintiff had cleared (as he alleged) according to contract, he called on the defendant for his pay, who refused. This was a short time before the wmrrant issued, in May 1843. It was proved, the ground was not cleared agreeably to the contract in several particulars. The defendant did not fence and cultivate it until the Spring of 1845; and it was not proved when he hauled off the wood or split up the timber for rails. The defendant’s counsel moved the Court to instruct the jury, that the plaintiff could not recover upon the first contract, because he did not work the whole six months, nor upon the second, because he had not cleared the ground as the contract required ; that he could not recover upon the common counts, either for the value of his four months work, or for the value of what work he had done in the clearing, for his right to compensation, in regard to each, was made to depend upon the clearing being done according to .contract, which was not proven, or upon its being received or used by the defendant as to *25which, there was no proof until after the action was brought.

The presiding Judge charged the jury that the plaintiff could not recover upon the first or second contract, not having performed his part of either ; that, taking the first contract, unconnected with the second, although the time of service was six months, yet, as the plaintiff was to te paid $S per month, the defendant had no right to refuse to pay any part, until the expiration of the whole time, and the demand of the plaintiff for his four months service having been refused, he would have had the right to consider this refusal as a wrongful act of the defendant, which put an end to the contract, and gave him a right to sue for what was due him for the four months work ; that taking the two contracts together, the effect of the second was to substitute the clearing of the ground, in the place of the two months work, which was unperformed ; that the plaintiff had a right to recover the four months service, which he had performed, although he had not made the clearing according to the contract; and, also whatever his work was reasonably worth to the defendant, <§’c.

The Court believed the distinction to be, that where work is done, but not in compliance with the contract, and the work may or may not be of benefit to the party, no action will lie for the value, until it is accepted or some use made of it; but where the work, being in and upon the land of the party, as in this case, must necessarily be of some benefit, as soon as it is done, there the law implies a promise to pay its value, &c.

Verdict and judgment for the plaintiff, and appeal.

J. W. Woodfm, for the plaintiff.

N. W. Woodfin, for the defendant.

Nash, J.

The plaintiff’s declaration contains several *26counts — the first, upon a special agreement, and one, for work and labor done. We concur with his Honor in that portion of his charge, wherein he instructs the jury, that the plaintiff is entitled to recover for the four months labor performed by him — but we differ with him as to the law governing the services as to the clearing. The charge upon that point is, “that the work being rendered in and upon the land was necessarily beneficial to the owner.” This is a novel principle to us. We do not perceive, why its being done in and upon the land must render it necessarily beneficial to the owner. Many cases might be put, in which it would not be. One is the instance put by Justice LeBlanc in Bastón and Butler, 7 East. 479. A carpenter is employed to build a house upon the land of another ; he does build it — but it falls down the day after it is delivered. Another case will afford a familiar instance of the want of correctness in the principle stated. A ditcher is employed to dig ditches to drain a particular piece of land ; he does the work, but in a manner so unscientific, that it does not drain the land at all, but, on the contrary, renders the ground more wet by conducting w-ater to it, instead of taking it off. Where is the benefit to the owner of the land in either case ? Yet the work was done in and upon the land, and in the latter case the land must be drained by ditching before it can be used.

The proposition, then, is not true. If it was intended to instruct the jury, that the law implied, that the work so done on the land was therefore beneficial ; we answer, we know of no such principle of law. If it was intended to instruct them, that such was the fact, then his Honor invaded the province of the jury. And in either case the charge is erroneous. In an action upon .a special agreement, the plaintiff must shew, that he has performed the work as specified, or he can not recover, either upon the special contract, or upon a count for work and labor done ? *27but if the work, when done, is received or used by the de-' fendant, and he thus derives a benefit from it, he must pay pro tanto for it. If the defendant refuses to receive the work, because of its insufficiency, or because of a deviation, the plaintiff cannot recover- upon a quantum meruit. Ellis v. Hamlin, 3 Taunton 52. 1st Leigh’s N. P. 77. In this case, the clearing of the land was substituted for the two months* work, not performed under the first contract. And it is admitted, that the clearing was not done in the manner stipulated, and that the defendant had not received or used it, at the time the action was brought, nor for nearly two years after.

We regret sending the case back to another jury. The plaintiff is clearly entitled to recover for the four months* service performed by him, but nothing for the clearing.

Per Curiam.

Judgment reversed and a venire de nova awarded.