By the Court,
Crawford, J.In this case, which originated before a justice of the peace in Rock county, the plaintiff' in error, who was the plaintiff in the action, obtained a judgment in the justices’ court for eighty-five dollars damages, and costs, and the defendant removed the case by appeal to the County Court of that county.
On the trial of the case in the County-Court, upon the same issue tried before the justice, the plaintiff offered to read in evidence a certain contract entered into by the parties to the suit, whereby Maynard agreed to perform the mason work and plastering necessary in the construction of a stone building for Tidball; in compensation for which work, Tidball agreed to give to Maynard “a clear title” to certain real estate in Rock county, and his (Tidball’s) account against L. E. Lane, of the same county. To the intro'duction of'this instrument as evidence, the defendant objected, and the County Court sustained the objection and rejected the evidence. There were several witnesses examined on the trial, from whose evidence, a jury having been waived, the judge of the County Court gave judgment for the plaintiff for two dollars and fifty cents damages, and costs. To reverse this judgment, the plaintiff sued out a writ of error.
*39The only question in the case is, whether the ten contract was properly rejected. The plaintiff in the action filed with the justice of the peace a written declaration for work and labor performed, for goods, wares and merchandise sold and delivered, and for money lent and advanced. There were also two counts in the declaration, in the following words :
“Also for work and labor before that time done and performed by plaintiff for defendant, by virtue of a contract, and on divers contracts concerning said work and labor.
“Also for damages for the non-performance and non-fulfilment of contract concerning work and labor, and divers other contracts entered into before the time above mentioned,” <fcc. To this declaration, the defendant filed a plea of the general issue, accompanied with a notice that the work and labor sued for. was performed under a special contract, of which a copy was given, and that the plaintiff Maynard had not completed the work, and was not entitled to be paid until the work was finished, and that payment was to be made in the manner specified, in the contract.
We are disposed to indulge in a liberal construction of the pleadings and proceedings before justices of the peace, where we can do so with a proper regard for the rights of the parties, and especially so in cases where they present their causes of action or matters of defence in the form of oral statements to the justice. If the allegations in such cases be substantially sufficient, the want of form ought not to be esteemed a serious defect. But when the parties to a suit in a justice’s court resort to formal written pleadings, and a question as to their sufficiency in form and substance is *40brought before us, we must apply to them the ordinary rules of pleading. We did so at the last term, in the case of Goodrich vs. Compound School District, No. 5, in the Towns of Milton and Fulton, and we must do so in this case.
A glance at this declaration will satisfy any pleader that it is wholly defective in substance, not only in respect to the contract offered in evidence, but in other particulars. It is enough, however, to say, that from the pleadings it appears that the written contract remained unperformed¡ and although the common count in indebitatus assumpsit may be maintained upon a special contract to recover the stipulated price, where the contract is not under seal, and has been fully executed, yet it would certainly be contrary to every correct notion of the law to permit a party to resort to an implied contract, when the parties have entered into an express agreement which remains in force. “There can be no doubt,” says Judge Story, in The Chesapeake & Ohio Canal Co. vs. Knapp and others, 9 Peters, 565, “that where the special contract remains open, the plaintiff’s remedy is on the contract, and he must set it forth specially in his declaration.” See also, Burlingame vs. Burlingame, 7 Cowen, 92; Robertson vs. Lynch, 18 John. 451.
The case of Young vs. Rummell, 5 Hill, 60, to which we have been referred, is, we think, clearly distinguishable from the present one. There, the suit was brought “for moneys due on contraed (lost by fire),” &c., and in the very words used, a satisfactory reason appears why the plaintiff did not and could not count specially on the instrument — it had been destroyed by fire. But in this case the plaintiff held a written contract, upon which he should have declared his *41right to recover, and there is no reason apparent for his omission to do so.
In justices’ courts, as in other courts of law, the allegations and the proofs must correspond, so far as they relate to the cause of action. “Although the pleadings in justices’ courts are liberally construed, we cannot wholly overlook matters of form. The declaration must show that the plaintiff has good cause of action, and on the trial, the proof must he confined to such a demand as is set up in the pleading.” The People, ex rel. Fuller & Wife, vs. The Judges of Oneida C. P. 21 Wend. 20.
We believe that the written contract, when offered in evidence, was properly rejected; and as we perceive no error in the case, affecting the plaintiff in error, we must affirm the judgment of the County Court.