#### JOEL HYDE, *pl’ff in error, vs.*JOB BARKER, *def't in error,*

*l*> *Error to Rock county.*

After evidence lias hecn given on the pavt of the plaintiff, pertinent to the issue, the court has no power to order a peremptory non-suit against the will of tho plaintiff; and a justice of tho peace cannot, in such case, non-suit the plaintiff'although he is trying tho cause without a jury.

Hyde brought suit against Barker before a justice of the peace in Rock county, on an account for work and labor. The plaintiff filed a written declaration in assumpsit, containing three counts. The first count was on a special contract made in August, 1841, to build a corn bain for the defendant for $24 — the work to be done by tho20lh October, 1841; tho second count was on a similar contract, the work to be done in a reasonable time; and the third was for work and labor generally. The defendant pleaded the general issue. Tho case was tried by a justice without a jury, and on tho trial the plaintiff proved that he had done a principal portion of the work on the contract, but did not prove that it was completed as ^ot out in the first count in tho declaration, and attempted to prove what tho work was worth, which was objected to by the defendant, and the objection sustained by the justice. The defendant moved for a nonsuit on the ground that a special contract had boon set up, and the plaintiff had failed to prove performance on his pavt. The plaintiff, pending the motion, asked leave to withdraw the first count in die declaration and let the evidence apply on the other counts, which the justice refused, and gave judgment of nonsuit against the plaintiff.

The case was taken into tho District Court by certiorari, where the judgment of the justice was affirmed, and Hyde' has prosecuted this writ of error to reverse the judgment of the District Court.

J. II. Knowlton, for plbff in error:

The justice ought to have received evidence of the value of th c work done, under the common count, although the proof may have failed to establish a special contract, or to show performance by the plaintiff. Although there be a special contract, and the plaintiff has failed to perform it in full, or perform it so negligent-*149Iy that a recovery cannot be had upon it; yet if the defendant has received any benefit from it, he must pay what the work is reasonably worth. *2*Phil. By. by Gowen & Hill, 109, note 311, page 108; 2 Starkie, 945; 20 English Com. Law Rep. 126; 7 do. 401; 23 do. 105; l Comyn on Contracts, 5, 6; *Hayward vs. Leonard,*7 Pick. 181; *Smith vs. The First Congregational Meeting Housein Lowell,*8 Pick 173.

Noggle, for dePt in error:

There are cases where a plaintiff may recover for the partial performance of a specified contract: But where the contract is to do a piece of work, in a particular manner and by a given time, the plaintiff cannot recover for a partial performance, unless the defendant has waived a complete performance; 14 Mass, Rep. 238; 2 Starkie, 942 and notes.

Whatever may be the opinion of the Court as to the errors of the justice, a judgment of non-suit ought not to be reversed. — , The plaintiff was not barred from proceeding *de novo,*and the casein this court, is amere question of costs.

Whitoíí, in reply:

If the judgment of the justice was erroneous, then the judgment of the District Court ought to be reversed. The evidence shows an acceptance of the work, and if it was not done according to the contract, the plaintiff is entitled to recover as much as it is worth. This must be the decision if the principles laid dowpin the case read from 7 Pickering are applied.

Although the case is a small one, the principles involved are of great importance, and entitled to a deliberate consideration.

Opinion of the Court, by

Judge Millek:

This case came before the District Court of Rock county, by certiorari to a justice of the peace. The error complained of was that the justice, after hearing the testimony on part of the plaintiff in support of the claim and pertinent to the issue, on motion of the defendant, for reasons therein stated, entered a non-suit against the plaintiff’s consent. This judgment was affirmed by the court; following in this particular, the practice in the State of Now York. That practice, we do not recognize in the District Court, and consequently, the same, if not better reasons, should prevent it before a justice. If it were tolerated, serious injustice may, in some instances be done. The Supreme Court of the United States have repeated the rule so frequently, that after per-*150tincnt evidence is received on part of plaintiff, the court has na authority to order a peremptory non-suit, against the will of tho plaintiff, on the trial of the cause before the jury, that the point is not now to be questioned. The plaintiff may agree to a non-suit, but if he do not choose, the Court cannot compel him to submit to it. *Elmere vs. Grymes,*1 Peters, 471; *Dewolf vs. Raband and others,*1 Peters, 497; *Crane vs. The Lesee of Morris and others,*6 Peters, 598.

J. II. Knowt/toN and Whitow, for pl’tff in error.

Noggi/e, for def’t in error.

This case was disposed of by the justice. He was bound to the same rule, as if there had been a jury empannellod. As the evidence comes up imperfectly, it might be unsafe to risk an opinion, on the points of law attempted to be raised upon the record, and the Court, for this reason, will not attempt their consideration.

The judgment must be reversed, and so certified to the District Court of Dock county, with orders to the said district court to reverse the judgment of the justice.