refused to give the instruction.

Mr. Mason then moved the Court to instruct the jury that the evidence which tended to prove that a special agreement had been made as fa the prices, did not support the general count oí indebi-tatus assumpsit, for work and materials.

The testimony was, that it had been agreed between the plaintiff and defendant that the price of laying the bricks should be twenty-one shillings a thousand, and the arches at a certain price.

The Court were of opinion, that upon this count for two hun*132dred dollars for work and labor, the plaintiff must prove an express assumpsit for a certain sum; and that there being no count on the special agreement, it cannot be gfcen in evidence in this action.