Statement of the case made, and opinion delivered by
McGirk Judge.Wilson brought an action of assumpsit against Helm in the circuit court of Lafayette county. The declaration contains two counts, and special agreement to dig certain ditches for a mill race. There was also another count in the declaration in indebitatus assumpsit. On the trial the plaintiff declared in open court that he abandoned the count. It appears by proof that the work had all been performed except two places, each large enough *483for a wagon to pass over the ditch, which places were proved to have been left at the request of the defendant, he promising to dig out both places himself. The defendant asked the court among other things, to instruct the jury, that if they believed that after the original contract was made, the parties altered that original contract so as to leave a part of the head race to be dug by the defendant,-and that the plaintiff did not dig out the same, then they must find for the defendant. The court refused to give' this instruction. The plaintiff had a verdict. , The refusing to give this instruction is the only error complained of.
The omission by tosíate in th#leo! larationhiscx-cuse for not per-the^engagement, is cured by verdict.The case as if stands, does not come within the principles of this case as decided May term of the court last year. In that case it was laid down, that where the parties altered an agreement, then the part unaltered and the new matter' substituted would form the agreement which should be' declared on as such. As the case now stands, it appears to us that the agreement was not altered, but that the defendant dispensed with part of the performance, and furnished the plaintiff with a good excuse for not performing the whole of the agreement. Now where the plaintiff has'a good excuse for not performing all or any part of the agreement, it is his duty to show that excuse in pleading, but if he will neglect to do so and yet will prove it on the' trial he may recover. In this case the plaintiff did prove his excuse.for not digging all the ditch according to the special contract.
By the 7 th sec. of the 6 th art. of the act to regulate practice at law, it is declared in No. 9 of the section— 46 8) that where a verdict shall have been rendered in any case, the judgment thereon shall not be reversed for any of the following defects: “Ninth; for omitting allegation or averment without proving which, the triers- of the issue ought not to have given such a ver-diet.” The omission in this case was the failure to allege the excuse for non performance, and not a failure to state the contract truly. The statute covers the case; as to the new trial, it was rightly refused. Judgment affirmed with costs.