It is contended, in this case, that the defence was special, and being in avoidance of the contract, could not be given in evidence under the general issue, but should have been set out in writing, as matter of defence, agreeably to the rules of the court of common pleas; and that the judge erred in allowing the defendant to take advantage of it under the general issue.
Admitting the plaintiff to be right in respect to the nature of the defence, and that the defendant, in order to avail himself of it, should have specified it, we are, notwithstanding, clearly of opinion that the plaintiff having, by his own testimony, shown the special contract upon which the defendant relied, the defendant could take advantage of it, in the same manner as if she had set it out fully. The object of a specification of defence is, to give the plaintiff notice of the defence relied upon, that he may come prepared to answer it; but where the plaintiff himself makes it a part of his own case, he cannot be prejudiced by want of notice, nor can he deprive the defendant of the use of the testimony which he himself has introduced.
Another objection to the direction was, that the judge gave it in charge to the jury, that the deposition, upon which the plaintiff relied, contained no evidence of a special contract, on the part of the defendant, to pay the plaintiff five dollars at the end of each month; whereas he should have left it to the jury to decide, upon the evidence, whether the defendant had made such a contract.
It is certainly correct, where there is evidence tending to prove a contract or fact upon which either party relies, that it is the duty of the judge, on the trial, to submit the same to the jury for their decision, whatever his own opinion may be ; and the not doing of it constitutes a proper ground of exception to the charge. But where the evidence, though uncontradicted, does not, in the opinion of the judge, prove the contract, or point attempted to be established ; or where the *290judge is clear that a verdict, founded upon the testimony offered, ought to be set aside, as a verdict against evidence; in such cases the judge may, at his discretion, state to the jury, that the facts proved do not sustain the contract or point relied upon ; or that the evidence is wholly insufficient for the purpose for which it is offered; and so advise a verdict in conformity to such opinion. In the present case, on examining the deposition containing the evidence upon which the plaintiff relied as tending to prove the contract set up, we are very clear that it not only does not prove the contract, but that, on objection, it would have been rejected, as the mere declaration of one party offered by himself, and not made in the presence of the other. And we therefore think there is no ground of objection to the charge, on this point.
In .regard to the contract itself, which was an agreement to work for the defendant for seven months, at twelve dollars per month, we are of opinion that it was an entire one, and that the plaintiff, having left the defendant’s service before the time expired, cannot recover for the partial service performed; and that it differs not in principle from the adjudged cases of Stark v. Parker, 2 Pick. 267; Olmstead v. Beale, 19 Pick. 528; and Thayer v. Wadsworth, 19 Pick. 349; which we are unwilling to disturb, upon mere verbal differences between the contracts in those cases and in this, which do not affect its spirit.
The plaintiff has argued that it was a contract for seven months, at twelve dollars per month, to be paid at the end of each month. But however reasonable such a contract might be, it is not, we think, the contract which is proved. There is no time fixed for the payment, and the law therefore fixes the time; and that is, in a case like this, the period when the service is performed. It is one bargain; performance on one part and payment on the other; and not part performance and full payment for the part performed. The rate per month is stated, as is common in such contracts, as fixing the rate of payment, in case the contract should be given up by consent, or death or other casualty should determine it before its *291expiration, without affecting the right of the party. Such contracts for hire, for definite periods of time, are reasonable „ and convenient, are founded in practical wisdom, and have long received the sanction of the law. It is our duty to sustain them, when clearly proved.
The rulings and directions of the learned judge, we think, were correct, and the exceptions are overruled.