The right to resort to the general counts, where there has been a special agreement, is thus stated by an eminent judge: “ Where a party declares on a special coil" tract, seeking to recover thereon, but fails altogether in his right so to do, he may recover on a general count, if the case be such, that supposing there had been no special contract, he might still have recovered for money paid, or for work find labor done.” Cook v. Munstone, 1 N. R. 355, (3 B & P.) So it has been held by this court, that the party may recover on the common counts, although there is a special contract, whenever by the breach of the contract, the plaintiff is entitled to recover a sum in numero; that is, where the damages for the breach of the contract are liquidated, and require nothing to be done but to make a calculation. Sprague and wife v. Morgan and wife, 7 Ala. 952.
These references are decisive to show, that the law was misapprehended in this case. As this was not a money contract, but an undertaking to pay a part of the crop for the services of the overseer, the plaintiff should have declared upon it, and if he had failed in proving it, he might then, upon the authority of the case first cited, have resorted to the common counts; as in the absence of a special contract, he *333would have been entitled to compensation for his work and labor, and could have recovered on a quantum meruit.
The court below seems to have supposed, that although a special contract was proved, yet if its terms were not established by the defendant, the plaintiff was entitled to recover on the common counts. We understand the law to be, that if there is proved to have been a special contract, which has not been rescinded, the plaintiff cannot resort to the common counts, though he .may fail in the proof of his contract, so as to enable him to recover upon it. Halle v. Hightman, 2 East, 145. That is the predicament of this case. The plaintiff has sued upon the contract as a money demand; the proof is, that he was to be compensated for his services by a part of the crop, and whilst this contract continues in force, it is manifestly unjust that the plaintiff should disregard it, and sue upon a quantum meruit. Nor is it any answer to the objection, that the defendant does not prove the precise terms of the special contract. He does show, that the plaintiff was not by his contract to be paid in money, and thus disproved the plaintiff’s cause of action as laid. Nor is the case brought within the rule laid down by this court, in the Case cited; not only because the terms of the special contract are not shown, but because if shown, it is not a legitimate demand, and therefore a sum in mvmero cannot be recovered.
The court also erred in assuming to determine what facts were proved, and also in holding that the facts which were proved, if believed by the jury, did not establish that there was a special contract. The facts as proved, did establish conclusively, that there was a special contract between the parties, although its precise terms were not proved. See Burn v. Miller, 4 Taunton, 475; Streeter v. Hortoch, 1 Bing, 37; Studdy v. Saunders, 4 B. & C. 638.
Uet the judgment be reversed, pnd the cause remanded,