The opinion of the court was delivered, January 3d 1871, by
Agnew, J.— With a great desire to sustain this judgment, we find ourselves unable to do so without assuming legislative powers. The courts both of England and of this state have felt themselves bound by the common law to maintain the boundaries between actions. Where a plaintiff has misconceived the form of his action, he must be turned out of court to begin anew, no matter what be the merit of his cause. This is a blot upon our jurisprudence, and should be remedied by the legislature. It can easily be done by simply giving to the courts the power to permit an amendment of the form of the action at any stage of the cause. Why should any one be turned away because of the dress in which he appears in court ? The action in this case should have been covenant, and not assumpsit. It is certainly true, and well settled by authority, that when a special contract has been fully performed, the party who has fully performed it may maintain general indebitatus assumpsit, and declare in the common counts for the work and labor or services rendered under it: Kelly v. Foster, 2 Binn. 4; Miles v. Moodie, 3 S. & R. 211; Algeo v. Algeo, 10 Id. 285; Harris v. Liggett, 1 W. & S. 301; Siltzell v. Michael, 3 Id. 329; Eckel v. Murphy, 3 Harris 93; Edwards v. Goldsmith, 4 Id. 43. The reason and foundation of *263this doctrine appears to be that when a service has been fully performed, a duty to compensate for it seems to arise independently of the special agreement. This, however, is really only seemingly so, and is probably fallacious, but the doctrine appears to be well settled, as the cases cited show. Yet, as the evidence that the doctrine cannot bear a' severe test, we find it decided in several cases that part performance will not suffice, nor will prevention stand for full performance, and there the plaintiff must declare upon the special agreement, and show wherein his part performance wjll entitle him to recover: Algeo v. Algeo, supra ; Harris v. Liggett, supra; Eckel v. Eckel, supra. All these cases, however, are where the special agreement has been by parol or a simple contract in writing. On a careful examination, I have not found a single case where the special agreement was under seal. (,The doctrine seems to be universal that where the cause of action arises upon a specialty, or sealed writing, the action must be covenant or debt, as the case may be. The only exception to this is where .the specialty has been altered by parol to such an extent as to make it a new contract, thereby turning the whole into parol; or where the specialty is abandoned and a new and independent contract made, though referring to the sealed instrument for some of its terms. ] Such are the cases of Vicary v. Moore, 2 Watts 451: Vaughn v. Davis, 2 W. & S. 46; Spangler v. Springer, 10 Harris 455; Lawall v. Rader, 12 Id. 283; Lehigh Coal and Nav. Co. v. Harlan, 3 Casey 441. And a distinction is taken between a mere waiver of a term of the plaintiff’s contract, which stands as a con dition precedent to his action, and the contract of the defendant on which the action is founded; see Jordan v. Cooper, 3 S. & R. 564 ; Green v. Roberts, 5 Whart. 84; McCombs v. McKennan, 2 W. & S. 216 ; 3 Casey 441—2. In the argument, the case of McGrann v. North Lebanon Railroad Co., 5 Casey 82, has been referred to as a case of a specialty, where an action of assumpsit was sustained after performance. But the case is really put on the ground that the special contract had been abandoned, though it must be admitted that no single ground is very distinctly stated, and the reasoning of the opinion is not clear. On the other hand, the cases of Irwin et al. v. Shirley, 10 Wright 76, and Shaffer v. Geisenburg, 11 Wright 500, decide that assumpsit cannot be maintained upon performance of a contract under seal, and, indeed, they may be considered as really ruling the question before us, for in both cases the special contract had been completed before the action was brought. The judgment must therefore be reversed.
Judgment reversed.