By the Court,
Marcy, J.It was | conceded on the argument that the case of Randall v.Van Vechten and others, (19 Johns. R. 60, (disposed of the two first points made on the part of the defendants. The contract was not binding on Wurts individually, it appearing that he had authority from the defendants to make it. Although it was Under the seal of the defendant’s agent, his seal was not the seal of the corporation, and the proper form of action against the "defendants was assumpsit.
*289The point of the greatest difficulty, and the main one in the case, is as to the form of the counts. If the instrument produced, it is said, was not the defendants’ covenant, it was their special agreement, and though the form of the action is . . , ,, . ° , . , assumpsit, the counts should have been on the special agreement.
If the contract has been rescinded, the plaintiff had a right to resort, as he has done, to the general counts, or, if it has been completely executed, he may recover in indebitatus assumpsit the stipulated price, unless the terms of the contract would be thereby infringed. (2 Phil. Ev. 83, n. a. 14 Johns. R. 326. Bull. N. P. 139. 1 Holt’s N. P. 236. 5 Mass. R. 391.)
Was the contract rescinded 1 On the part of the plaintiff, it is contended that the omission of the defendants to give directions to open the road in time to enable the plaintiff to fulfil the contract within the period limited for its performance, was a rescinding of it. On the other side, it is said that this omission was at most but a breach of it, for which the plaintiff has his remedy by action. Every breach of a special agreement by one party does not authorize the other to treat it as rescinded; but there are some breaches that do amount to an abandonment of it.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other from performing on his part according to the terms of his agreement, the contract may, I think, be considered as rescinded. By the contract, the plaintiff was to complete section No. 12 by the 1st. day of October, 1826. Not having done the labor by that time, he could not recover on it. His only remedy would be on a quantum meruit. “ If the plaintiff prove a special agreement and work done, but not according to such agreement, he shall recover upon the quantum meruit, for otherwise he would not be able to recover at all.” (Bull. N. P. 139.) The case of Linningdale v. Livingston, (10 Johns. R. 36,) is an authority on this point. The special agreement was there considered as rescinded by *290the acts of the party, which prevented the plaintiff from performing his engagement according to the terms of the special agreement; he was therefore allowed to abandon the count on the special agreement and recover on the common counts.
The cases go farther than merely to allow a party who has entered into a special agreement to perform labour, and has been prevented by the other party from doing that labor according to the terms of the agreement, to recover under the common counts. He may recover on a quantum meruit where the defendant has done no act to prévent the performance, and where the evidence is sufficient to warrant the plaintiff’s action on the general count, supposing no special agreement had been laid in the declaration ; but in the latter case, the terms of the special agreement would regulate the compensation. The plaintiff declared on a quantum meruit for work and labor in building a house for the defendant; the defendant shewed a special agreement that the work was to be done at a particular time and in a specified manner, and that the plaintiff had not conformed to his agreement, yet the plaintiff recovered. (Keck’s case, decided at Oxford, 1744, referred to in Bull. N. P. 139.)
It was urged on the argument that the plaintiff has a remedy on the contract, although the work was not done within the stipulated time ; that the limitation as to time did not take effect, because the defendants having power to stay the work beyond the 1st of October, by virtue of the clause in the agreement which restrained the plaintiff from making the canal across the road until their permission was given, and they having withheld tins permission till the work could not be done by the 1st of October, they could not be permitted to set up the non-performance within the stipulated time to defeat an action by the plaintiff on the special contract. Assuming, without deciding that the court would not suffer the defendants to defeat the plaintiff’s action, if he had chosen to bring one on the agreement, by alleging a failure of performance within the proper time, occasioned solely by their own acts done pursuant to a power reserved by them, yet if these acts were done at a different time from that which the parties had in contemplation, and by being done at such dif*291ferent time the plaintiff was necessarily subjected to great additional expense in the performance of his engagement, he ought not to be obliged to confine his action to the agreement, and thereby lose all remedy for this additional expense. T„, . , * , , , . - i, It his remedy was on the contract alone, this, 1 apprehend, would-be the result, because, if the plaintiff should say that' the reserved power in relation to the road could be so exercised as to extend the time for the performance of the contract beyond the 1st of October, he could not afterwards say that the exercise of that power in such a manner that he Could not perform the contract before the 1st of October was a breach by the defendants of the contract.
I think it is giving a fair construction to the contract to say, that the restraint on the plaintiff not to interrupt the public road until permission should be given, was not to be continued by the defendants so as to prevent the performance of the work within the stipulated time. I am therefore of opinion that the plaintiff has a right to prove his claim under the common counts.
Though the special contract was departed from, the parties did not wholly lose sight of it. There is much evidence to shew that the plaintiff regarded it as regulating the rate of compensation that he was to receive for his services. The rule, applied in the case of Robson v. Godfrey, (1 Holt’s N. P. 236,) seems to me ought to govern here with perhaps a little modification. It was there decided that where work is done under a special contract at estimated prices, and there is a deviation from the original plan by the consent of the parties, the estimate is not excluded, but is to be the rule of payment as far as the special contract can be traced; and for the extra labor, the party is entitled to his quantum meruit. This rule needs no modification where the work embraced in the contract, is performed under circumstances not more disadvatageous than was expected at the time of the estimate. In this case,'if the work was not more expensive by reason that the plaintiff was obliged to perform it late in the season, the additional expense thus incurred ought to be added to the contract price.
*292The work on that part of section No. 13, which was added to section No. ■ 12 and performed by the plaintiff, was most pf it of a similar character to that embraced in the contract ; and there is considerable evidence to shew that both the plaintiff and the agents of the defendants understood that it was to be performed on similar terms. If such was in fact the understanding of the parties, the prices specified in the contract should regulate the compensation for this labor; but if not, the plaintiff is entitled to recover what the labor was actually worth. Such also must be the allowance to him for all the extra labor which he performed for the defendants.