Weight, 0. J.
To reverse this judgment, defendant relies in his assignment of errors, upon sixteen different grounds, the most material of which we proceed to notice; and we may say at once, that we think a large portion of the instructions are entirely inapplicable to the case. Such we have examined carefully, and while we thus regard them foreign, yet we are unable to see that the jury could reasonably have been misled thereby, and it therefore, will be unnecessary to further refer to them. Of this character, is all that is said in the instructions in chief, as to the law where there have been deviations from the original plan agreed upon by parties, or where there has been extra work. We do not see any testimony tending to raise these questions, and are unable to see their applicability in any way, to the case. The same is true of the plaintiff’s and defendant’s instructions relative to the fall of the building, for we do not understand that either party claims, that the plaintiff’s right to recover, or the defendant’s liability, is increased or diminished by that circumstance. Where it is evident that such foreign or inapplicable instructions, could reasonably have misled the jury, to the appellant’s prejudice, this court will reverse the case, .and order a new trial. But not so, where the prejudice is not manifest. This disposes of the second and seventh assignment of error.
The court below' charged the jury, that the decisions predicated on written contracts, were not applicable to the case at bar, “ as no written contract had been established or produced, showing the nature of the undertaking of the parties, or their several liabilities in the premises,” and this is claimed to have been error, both of fact and law. We think [479]*479this instruction was substantially correct. The point of the instruction, as we understand, and that to which the objection is made, is that the jury are told that there was no written agreement between the parties. It is the duty of of a court to determine, and to inform the jury, whether a paper or writing introduced is, or is not, a contract — -is or is not, that which fixes the liability in the premises. This paper had not the first ingredient of a contract. By it, no person could learn where, when, or how, the work was to be done; who was to do it; who was the employer, or employee ; what the terms of payment; when it was made, or whether it had the most remote relation to the building erected. It states neither parties, object, nor subject matter. There is, in short, neither agreement, consideration, or a thing to be done or omitted; and the jury were, therefore, properly informed, that no written contract had been introduced, showing the undertaking or several liabilities of the parties. When taken in connection with the pleadings and oral testimony, we understand it to be, a statement of the prices that defendant was to pay for certain materials and labor to be furnished and performed by plaintiff, and nothing more. If, however, the pleadings and proof shall, in connection with this paper, show a contract, then it must be governed by the same rules, and the parties be subject to the same liability thereunder, as if it was written, whether that contract shall be entire or several — certain, dependent, or independent covenants — be executed or executory — or whatever its conditions. And this brings us to an examination of the plaintiff’s petition, the great mass of the instructions, and indeed the points in the case upon which counsel have bestowed much labor and research, and upon which appellant chiefly relies, to reverse this judgment.
On the trial, the jury were properly told, that whether there was any. contract, and if so, its nature and conditions, and whether it had, or had not, been performed, were to be determined by them, from the evidence. The court also instructed the jury, “ that where a contract is made of such a character, that a party actually receives labor and materials, [480]*480and thereby derives a benefit, over and above the damages, which have resulted from the breach of the contract by the other party, the labor actually done, and the value received, furnish a new consideration, and the law, therefore, raises a promise to pay to the extent of the reasonable worth of such excess. This may be considered as making a new case,— one not within the original agreement, — and the party is entitled to recover on his now case, for the work done, not as agreed, yet accepted by the defendant. If, on such failure to perform the whole, the nature of the contract be such, that the employer can reject what has been done, and refuse to receive any benefit from the part performance, he is entitled so to do; and in such case is not liable to be charged, unless he has before assented to, and accepted what has been done. But where the party receives value, takes and uses the materials, or has advantages from the labor, he is liable to pay the reasonable worth of what he has received. The amount, however’, which the employer ought to be charged, when the laborer abandons the contract, is onlythe reasonable worth, on the amount of advantage he receives upon the whole transaction, and in estimating the value of the labor, the contract price for the service cannot be exceeded,” citing Britton v. Turner, 6 N. H. 497; Fenton v. Clark, 11 Vermont, 560; 12 Ib. 625; and further, that “ the principle here adopted, is that it is unconscionable and inequitable, for a party who has been actually benefited by the part performance of a contract, above or beyond the damages he has sustained, by the non-performance of the residue of the agreement, to retain this excess of benefit, without making the other party a compensation therefor.” And after having laid down these rules, in the instructions in chief, the court, at the request of defendant, gave the following :
1. That the plaintiff in this cause, having brought this action on a special contract, and averred a performance of the contract, cannot recover at all, unless he proves the performance thereof, as alleged.
2. If a person contract to build a house, or to do the wood [481]*481work, and famish the raw materials fox a house on the land of another, and proceeds to perform the work, in part, and afterwards refuses and neglects to complete the residue according to the terms of the agreement, and it is impracticable for the employer to abandon it, he can appropriate the work so far as it may have progressed, without being subject to an action for what the work is worth,” citing Boyle v. Agawam Canal Co., 22 Pick. 381; Oakley v. Martin, 1 Kernan, 25.
8. “ That under no proof which plaintiff might offer, short of performance of all the work, and furnishing all the materials agreed upon, can the plaintiff recover in this action.
18. “ That if plaintiff abandoned the work before he completed his contract, and refused to complete it, or permit others to complete it, he cannot recover in this action.”
And, in addition to these, the court gave some eight other ■instructions, at defendant’s request, equally as explicit, and laying down the doctrine quite as strong, that plaintiff could not recover upon an entire contract (on this contract, see ■8th instruction), without proof of entire performance. The instructions in chief, and those given as asked by defendant, ■cannot all be law. There is an irreconcilable'conflict between them; and we may be permitted ’to -express our surprise, -that, after having given the one, the court should have given the other.
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Weight, 0. J.
To reverse this judgment, defendant relies in his assignment of errors, upon sixteen different grounds, the most material of which we proceed to notice; and we may say at once, that we think a large portion of the instructions are entirely inapplicable to the case. Such we have examined carefully, and while we thus regard them foreign, yet we are unable to see that the jury could reasonably have been misled thereby, and it therefore, will be unnecessary to further refer to them. Of this character, is all that is said in the instructions in chief, as to the law where there have been deviations from the original plan agreed upon by parties, or where there has been extra work. We do not see any testimony tending to raise these questions, and are unable to see their applicability in any way, to the case. The same is true of the plaintiff’s and defendant’s instructions relative to the fall of the building, for we do not understand that either party claims, that the plaintiff’s right to recover, or the defendant’s liability, is increased or diminished by that circumstance. Where it is evident that such foreign or inapplicable instructions, could reasonably have misled the jury, to the appellant’s prejudice, this court will reverse the case, .and order a new trial. But not so, where the prejudice is not manifest. This disposes of the second and seventh assignment of error.
The court below' charged the jury, that the decisions predicated on written contracts, were not applicable to the case at bar, “ as no written contract had been established or produced, showing the nature of the undertaking of the parties, or their several liabilities in the premises,” and this is claimed to have been error, both of fact and law. We think [479]*479this instruction was substantially correct. The point of the instruction, as we understand, and that to which the objection is made, is that the jury are told that there was no written agreement between the parties. It is the duty of of a court to determine, and to inform the jury, whether a paper or writing introduced is, or is not, a contract — -is or is not, that which fixes the liability in the premises. This paper had not the first ingredient of a contract. By it, no person could learn where, when, or how, the work was to be done; who was to do it; who was the employer, or employee ; what the terms of payment; when it was made, or whether it had the most remote relation to the building erected. It states neither parties, object, nor subject matter. There is, in short, neither agreement, consideration, or a thing to be done or omitted; and the jury were, therefore, properly informed, that no written contract had been introduced, showing the undertaking or several liabilities of the parties. When taken in connection with the pleadings and oral testimony, we understand it to be, a statement of the prices that defendant was to pay for certain materials and labor to be furnished and performed by plaintiff, and nothing more. If, however, the pleadings and proof shall, in connection with this paper, show a contract, then it must be governed by the same rules, and the parties be subject to the same liability thereunder, as if it was written, whether that contract shall be entire or several — certain, dependent, or independent covenants — be executed or executory — or whatever its conditions. And this brings us to an examination of the plaintiff’s petition, the great mass of the instructions, and indeed the points in the case upon which counsel have bestowed much labor and research, and upon which appellant chiefly relies, to reverse this judgment.
On the trial, the jury were properly told, that whether there was any. contract, and if so, its nature and conditions, and whether it had, or had not, been performed, were to be determined by them, from the evidence. The court also instructed the jury, “ that where a contract is made of such a character, that a party actually receives labor and materials, [480]*480and thereby derives a benefit, over and above the damages, which have resulted from the breach of the contract by the other party, the labor actually done, and the value received, furnish a new consideration, and the law, therefore, raises a promise to pay to the extent of the reasonable worth of such excess. This may be considered as making a new case,— one not within the original agreement, — and the party is entitled to recover on his now case, for the work done, not as agreed, yet accepted by the defendant. If, on such failure to perform the whole, the nature of the contract be such, that the employer can reject what has been done, and refuse to receive any benefit from the part performance, he is entitled so to do; and in such case is not liable to be charged, unless he has before assented to, and accepted what has been done. But where the party receives value, takes and uses the materials, or has advantages from the labor, he is liable to pay the reasonable worth of what he has received. The amount, however’, which the employer ought to be charged, when the laborer abandons the contract, is onlythe reasonable worth, on the amount of advantage he receives upon the whole transaction, and in estimating the value of the labor, the contract price for the service cannot be exceeded,” citing Britton v. Turner, 6 N. H. 497; Fenton v. Clark, 11 Vermont, 560; 12 Ib. 625; and further, that “ the principle here adopted, is that it is unconscionable and inequitable, for a party who has been actually benefited by the part performance of a contract, above or beyond the damages he has sustained, by the non-performance of the residue of the agreement, to retain this excess of benefit, without making the other party a compensation therefor.” And after having laid down these rules, in the instructions in chief, the court, at the request of defendant, gave the following :
1. That the plaintiff in this cause, having brought this action on a special contract, and averred a performance of the contract, cannot recover at all, unless he proves the performance thereof, as alleged.
2. If a person contract to build a house, or to do the wood [481]*481work, and famish the raw materials fox a house on the land of another, and proceeds to perform the work, in part, and afterwards refuses and neglects to complete the residue according to the terms of the agreement, and it is impracticable for the employer to abandon it, he can appropriate the work so far as it may have progressed, without being subject to an action for what the work is worth,” citing Boyle v. Agawam Canal Co., 22 Pick. 381; Oakley v. Martin, 1 Kernan, 25.
8. “ That under no proof which plaintiff might offer, short of performance of all the work, and furnishing all the materials agreed upon, can the plaintiff recover in this action.
18. “ That if plaintiff abandoned the work before he completed his contract, and refused to complete it, or permit others to complete it, he cannot recover in this action.”
And, in addition to these, the court gave some eight other ■instructions, at defendant’s request, equally as explicit, and laying down the doctrine quite as strong, that plaintiff could not recover upon an entire contract (on this contract, see ■8th instruction), without proof of entire performance. The instructions in chief, and those given as asked by defendant, ■cannot all be law. There is an irreconcilable'conflict between them; and we may be permitted ’to -express our surprise, -that, after having given the one, the court should have given the other. And, in this connection, we will dispose of the ■appellant’s assignment of error, based upon this very conflict. Nothing tends so much to certainty in judicial proceedings, or is more likely to insure the correct administration of the law in our courts, than clearness in the instructions •given to the jury. These should, ordinarily, be brief-enunciating, with perspicuity, the very principles that apply, and upon which the case should he decided — lopping off all extraneous matter. Any other course must necessarily confuse a jury, and endanger the rights of parties; and yet we are aware, that, in cases strongly contested, it requires great care to do this. The counsel will prepare lengthy instructions ; a portion being correct and applicable, perhaps'; others, abstractly correct, but entirely foreign to the case'; •and in the haste incident to such trials, all are given. We [482]*482regret to see that this is a growing evil, and the remedy lies-almost exclusively in the hands of the judge, who should make it a cardinal point, to have practical certainty in the trials had before him, even if he shall not arrive at theoretical perfection. In the case before us, the difficulty can hardly be said to be one of confused instructions, but the giving of those that do plainly and manifestly conflict. The-jury could well understand, that the law was either as laid down by the court, or as asked by defendant, and given but which, it must be conceded, the jury could not tell, from the instructions. Where instructions are so confused, that we can see that the jury were misled, and instead of deciding the case upon the questions involved, acted at random, to the probable prejudice of the complaining party, we should not hesitate to order a new trial. When the complaining partjf has, however, asked and obtained instructions which conflict with those given in chief, we do not think it would be a safe or salutary rule, to reverse a ease for that reason. If his instructions are right, then the others are wrong, and for that reason the ease should be reversed. If his are wrong, and, notwithstanding their strong and explicit language, it should appear that the jury decided the case correctly, under all the circumstances, then the judgment should not be disturbed.
We, therefore, are left to determine, which of these instructions are correct, and which erroneous. It is very manifest, that if the jury had followed the law, as laid down in defendant’s instructions, they never could have found this verdict, while, if they followed the other ruling, they reasonably might. Before examining these instructions, it will be necessary, to refer with a little more care, to plaintiff’s petition. And, briefly, we understand the second count to declare upon a special, entire contract, and to aver a fulfillment thereof. The first count, we understand to declare upon a special, but not an entire contract. It avers, in substance,- that for certain prices named in the bill or statement signed by the parties, the plaintiff was to furnish materials, and do work on a house, described and located, and for [483]*483what he did furnish and perform, he was to be paid at the rates- therein specified, as said materials and labor were furnished and rendered; that he did furnish materials and perform work under said contract, to an amount shown in the account annexed; and that there remains due and unpaid, the amount claimed; but there is no averment, that he either was to, or did, furnish all the materials, and complete the house. And yet it is quite evident, that, in both counts, plaintiff seeks to recover specially upon an alleged special contract, and does not declare generally on the assumpsit which the law implies. In other words, he places his right of action, in each case, upon an express contract, and not upon the implied legal liability of the defendant, to pay or recompense him for materials furnished and work performed, at his request.
Having then declared specially, with nothing in the nature of the common counts, can he recover what the materials and services were reasonably worth, as in general assumpsit? We think not. We are aware that courts have had much difficulty, in solving the many questions that constantly arise in actions brought to recover on special contracts, where there has been a partial performance— where there have been deviations from the original contract— where there has' been an abandonment of the work to be performed, with and without the consent of the employer— and where the contract has not been performed, and the employee seeks to recover what his work or services are reasonably worth. We know of no case, however, which has gone, so far as to hold, that a party may declare specially, and yet recover as upon the common counts. In all the cases in which it has been held, that a party may recover for the reasonable value of his services rendered upon a special contract, it will be found, that he claimed under the common counts alone, or else had the special, as well as the common counts, in his declaration. This is abundantly shown in the case of Britton v. Turner, 6 N. H. 481, relied upon by appellee, as also in Haymond & Leonard, 7 Pick. 181; Epperly v. Bailey, 3 Ind. 73; Pierson v. McKebbin, 5 [484]*484Ind. 261; Coe v. Smith, 4 Ib. 79; and, indeed, in all that class of cases which, hold, that the contractor may recover a reasonable sum for the services he has actually performed, though he has failed to complete the contract in all its parts. If he declares alone upon the special contract, he cannot recover, because the work or service which was to entitle him to the amount agreed upon, has never been performed, and therefore, the proof fails to sustain the material averments in the petition. If he declares upon the common counts, however, he relies not upon any special or express promise, but upon the implied obligation which the law imposes on the defendant, to pay what the services are reasonably worth, deducting therefrom whatever damages he has sustained, by reason of the non-fulfillment of the contract. In this case, we do not determine the much disputed question, whether the plaintiff could recover upon the common counts, what the materials furnished, and labor performed, were reasonably worth, if he abandoned the contract. On this subject, the authorities are very complicated, and not to be reconciled. We may say, however, that a majority of the court, which heard the argument, incline strongly to the opinion, that upon a proper declaration, the action might be maintained. As the record does not, however, raise the question, we do not pass upon it.
In this view of the petition, the instructions in chief are erroneous. They are evidently based upon the doctrines recognized in Britton v. Turner, 6 N. H. 841, and there, as already shown, the declaration contained the common counts. Here there are no common counts, and there could, therefore, be no recovery, except upon the promise set out in the special counts. If the jury found that the contract was proved and performed, as set forth in either count, then, of course, these instructions were immaterial, and could not have prejudiced the defendant. And was it manifest from the proof, that plaintiff did in fact fulfill his contract, and was entitled to recover the full contract price, we should not incline to -disturb the verdict. But so far from this being manifest, it quite clearly appears, that the work was [485]*485abandoned by plaintiff. And yet, while the jury may have believed this, under these instructions they were justified in finding whatever the plaintiff’s materials and services were worth, over and above the damages which resulted to defendant from the breach of the contract. This, we think, could not be done under the petition. The first count, as already stated, is not upon an entire contract. Neither is it of that class of cases which we sometimes see, where the materials, work, time, and manner of performance, are all contained in a special contract, but the price to be paid is left unsettled or undetermined. In such a case, it would be manifestly proper to set forth the contract, and claim to recover whatever the services and materials were reasonably worth. But, in this case, while, by the first count, plaintiff does not declare upon an entire contract, yet he does allege and claim, that the prices to be paid, as well as the materials and work, were fixed and determined by his agreement or contract with the defendant; and, having so • declared, we think, he cannot abandon the same, without other averments, and recover upon an implied obligation. And this view applies, with much more force, to the second count, for there there is an express averment, that plaintiff was to, and did, fulfill a contract entire in its character.
The plaintiff, however, insists that certain averments made in the concluding part of the second count, entitled him to recover as in general assumpsit. "Without referring to these averments in detail, we conclude that we should permit too loose a system of pleading, to so treat them. If this part of the count, had the substance, we should not be inclined to hesitate as to the form. It appears to have been thrown in without any very definite object, and as such, may properly be disregarded.
It is'further claimed by plaintiff that we cannot, as a court of errors, inquire into the correctness of the instructions, because the exceptions thereto are too general and indiscriminate. The bill of exceptions sets out all the testimony, the entire charge of the court, as well as the instructions asked by plaintiff, and concludes as follows: “ To all which in[486]*486s tractions of the court, as well those given by the court, as those given at the request of the plaintiff, the defendant then and there excepted, and prayed,” &c. The point now made is, that inasmuch as the charge of the court, and the instructions asked by the plaintiff, involve several propositions, if some of them axe unobjectionable, then a general exception will present no question which can be reviewed in this court. The plaintiff relies to sustain this position, principally upon the New York cases, citing Caldwell v. Murphy, 1 Kernan, 416; Hart v. Railroad Co., 4 Seld. 43, and others, as also tbe decisions from some other states. Without examining in detail these cases, we may say that many of them, are not analogous to the one at bar, while others, were made under a system of practice quite different from ours. Under our Code, the charge of the court is to be confined strictly to matters of law, and if desired bjr either party, must be in writing, and placed in the hands of the jury. So also, the instructions asked by either party, shall be in writing, if required by the court. To any decision or opinion, either party may except, which is done (if for matters occurring during the trial), by reducing the same to writing, before the verdict is rendered, unless otherwise arranged by consent. When reduced to writing, and signed by the judge, the bill of exceptions becomes a part of the record. And thus we see, that under our practice, all the instructions may become part of the record in a case, as fully and entirely as any other portion of it. To make them so, however, as this court has frequently held, it is necessary that the party objecting, shall have the same incorporated into a bill of exceptions. When he has done this, we see ho warrant under our statute, for saying that the errors will be disregarded by this court, if a portion of the instructions should be unobjectionable. The hardship and difficulty of which the plaintiff speaks, we think, might be easily obviated by attention on the part of the court and opposite counsel, to the bill of exceptions. We coincide, most freely, in the position, that this court should only pass upon the very matters which were determined by the court below, and that a party should not be surprised by [487]*487having to meet a new issue in the appellate tribunal; and with reference to the instructions, this may be easily accomplished. Take this case as an illustration. After the instructions were given, the defendant stated, as we may suppose, that he excepted to the same. Then it was in the power •of the court, to require that he should specify to what particular proposition or propositions involved in the charge, he wished to take his exceptions. And if the court did not exercise this power, the opposite party might have required it; and thus, in one way or the other, might have been brought to the attention of the court, the objectionable matter contained in the charge, and an opportunity given to correct the same, if desired. If it appeared that when thus required, the defendant refused to point out the particular parts to which he objected, there would be great force in the position, that this court should not reverse, if any part of the instructions were unobjectionable. This practice strikes us ■as fair and equitable, and in accordance with, the spirit of the Code. In this method, we may, at least, approximate having only those questions revised in this court, which were contested by the parties in the court below. When, however, the exception is general to the whole eharge, and not objected to, by the opposite -party, or required to be specified by the court, we think the appellant may assign his errors here, so as to obtain a review of any part of such in.■structions. There is another consideration that has much weight with us, in determining this question. The course pursued 'in this case, by appellant, in excepting to the charge •of the court as a whole, is that uniformly followed, and in the absence of some positive, statutory requirement, we should be unwilling to enunciate a rule that might, and ■probably would, result in affirming a large proportion of the ■cases before us, which have been prepared in strict accordance with the uniform practice. By pursuing the course indicated herein, we think all the difficulties suggested by plaintiff, may be prevented, and much injustice to parties, ,and labor to this court, obviated. We conclude, therefore, that the bill of .exceptions does properly present the objee[488]*488Rons urged by defendant; that tbe instructions given by tbe court were erroneous, as applied to the case made by the plaintiff’s petition ; and that the judgment must he reversed-