It appears to the court that the instructions Were right, and that, in the case supposed, indebitatus assumpsit would lie. The question whether the son was idle and unfaithful was left to the jury, upon instructions which were not excepted to. There was conflicting evidence upon the point whether the contract was absolute, for a year, or qualified, as the son testified, for a year, if he liked. It was in reference to this, that the instruction was given, which is excepted to. It was this; that il it was without such qualification, that is, for a year certain, still, if the defendant, without sufficient cause, discharged him from his service, before the expiration of the year, the plaintiff was entitled to recover, pro rata for the portion of the year.

*580The rule of law is well stated by the defendant’s counsel, that when a special contract is open and unexecuted, and the plaintiff proceeds for a breach of it, he must declare specially, and set it out, and aver a breach ; and that indebitatus assumpsit will not lie. But when a contract is at an end, either by its own original terms, or by the subsequent consent of the parties, or by the unjustifiable act of the defendant, and nothing remains but to pay money, indebitatus assumpsit will lie, although the debt accrued under a special contract; and such special contract may be proper and necessary evidence in support of the action. Grissell v. Robinson, 3 Bing. N. R. 15, and 3 Scott, 335. Felton v. Dickinson, 10 Mass. 287. Baker v. Corey, 19 Pick. 496. Perkins v. Hart, 11 Wheat. 237.

The case put by the judge was, that if the further performance of the contract had been dispensed with or permitted by the defendant, the plaintiff might declare in indebitatus assumpsit, for the part of the money already earned, conformably to the terms of the contract. The instruction rightly proceeded on the ground, that if the defendant had, without justifiable cause, prevented the further performance of the contract, the plaintiff, by bringing his action for the part of the year, during which the son had served, thereby assented to the act of the defendant, and the contract was thereby determined. Had the plaintiff proceeded for the wages of the whole year and the board for the unexpired part of the year, then he would have proceeded as upon the open and executory contract ; he must have set it out in a special declaration, and averred a performance, or readiness to perform, on the part of the son, and a breach on the part of the defendant; and general indebitatus assumpsit would not lie.

Exceptions overruled