Clark v. Smith , 14 Johns. 326 ( 1817 )

Per Curiam.

The question in this case arises upon a bill "of exceptions duly taken to the decision of the court below. Thé declaration in the cause contained the common counts for worir. labour, and services, and a count upon a special agreement in relation to the same services. On the trial, the plaintiffs below did not produce the special agreement, but attempted to show it was lost, and failing to prove the loss of the agreement, the court permitted him to go into evidence under the general counts. This was not admissible; there was no pretence, on the part of the plaintiff, that the special contract was rescinded, or that the same was still subsisting and in full force; nor but that the work and services performed, were done under, and in pursuance of, the written contract. To allow the plaintiff under such circumstances to abandon the written contract, would be establishing a dangerous principle, by enabling a party, at anytime, by his own act to put an end to his contract when he was dissatisfied with it. No case has ever gone this length. Where-ever the special contract is still subsisting, and no act done or omitted by the one party which will authorize the other to consider the contract rescinded, the remedy must be on the special contract; and this principle will be found to run through all the cases on this subject. (7 Johns. Rep. 172. 10 Johns. Rep. 36. 12 Johns. Rep. 274. 13 Johns. Rep. 94.) The judgment of the court below must, therefore, be reversed.

Judgment reversed.