Where parties by a contract under seal, stipulated for the performance of any duty, an action for its breach must be brought upon the instrument itself, and as-sumpsit will not lie, unless the contract has been subsequently varied by the parties, by the introduction of new terms into the contract, or providing a different time for its performance. [McVoy v. Wheeler, 6 Porter, 201.]
We do not understand from the facts, as recited in the bill of exceptions, that there was any change of the terms of the written contract entered into between these parties. It appears that extra work was done, and that it was not complet*224ed until December, instead of October, as provided by the contract. The fact that extra work was done, not called for in the contract, is entirely consistent with the contract remaining in force. We do not understand from this, that there was any departure from the original plan, but that other, additional work was added. This it is clear would not change the contract, which would still remain in force, and for such additional' work, if no price was agreed on, a quantum meruit would lie. Nor could the omission of the builder, to complete the work by the time he had stipulated, work a change or rescission of the contract. If, notwithstanding the work was not completed in time, it was accepted by the other party, the only effect would b'e, that he would be held to have waived any objection to it on this score. But to entitle the plaintiff to abandon the contract, and recover as on a quantum meruit, he must show, either that the contract has been rescinded, or that he has been prevented by the act of the opposite party from performing it on his part, according to its terms. [Liningdale v. Livingston, 10 Johns. 36.]
It also appears, that in this case, the plaintiff was not to be compensated in money, but in certain notes, which are described. It is quite too clear for argument, that the plaintiff cannot, without fault of the defendant, abandon the contract, and convert it into a money demand. Whether, if the contract was rescinded by the act of the defendant, or by the agreement of the parties, the plaintiff might not recover upon a quantum meruit, without a demand of the note, we need not consider, as there is nothing in the record from which we could infer a rescission, or abandonment of the contract; and whilst it subsists it cannot be converted into a money demand, without a refusal on the part of the defendant to deliver the note. [Snedicor v. Leachman, 10 Ala. 332.]
It was not necessary that the defendant should plead the existence of the special contract, he could take advantage of it under the plea of non-assumpsit. Judgment reversed and cause remanded.