If the special contract set forth in the award of the arbitrators was open and unrescinded, and had not been terminated by the acts of either party, it would necessarily defeat the right of the plaintiff to recover for the services he has rendered. The plaintiff concedes this, and seeks to avoid the effect of the special contract as a bar, by showing that the defendant has by his own acts, in conveying to a third person a portion of the real estate, which is the subject of the special contract, incapacitated himself from fulfilling his contract with the plaintiff, and thus authorized the plaintiff to treat the same as rescinded.

That such conveyance by the defendant of a portion of his real estate has been made is not denied. But it is said to have been in discharge of antecedent debts due from the de« *18fendant, and therefore not to be deemed in violation of the special contract, inasmuch as it was liable to be taken by creditors on legal process, if the defendant had not conveyed it for the purpose of discharging his debts.

To this ground of defence, the first answer is, that in the opinion of the arbitrators, the defendant failed to show any such legal liability to the supposed creditors, as is alleged by him, assuming the burden of proof to be on him to show such outstanding debts. That such burden rests on the defendant, we consider to be quite clear, as it is his ground of defence, and one, which to be made in any aspect available, must not only be alleged but sustained by proof.

But as it seems to us, the case may be properly put upon more general grounds. In the opinion of the court, a conveyance by the defendant of his real estate, to raise money to discharge his antecedent debts, would be such a violation of this special contract, as to authorize the plain tiff to treat it as determined by the acts of the defendant, and being thus violated by the defendant, to institute an action to recover con • pensation for his labor and services under the contract.

The, farther question is, whether the plaintiff can enforce such claim under the common counts for labor and services, &c. That such common" counts are sufficient, in many casen, where a claim originates in a special contract, has become well settled. It is clearly so, when the special contract has been executed so far, that nothing remains but the mere duty to pay money by the defendant, as in the cases of Felton v. Dickinson, 10 Mass. 287, and Baker v. Corey, 19 Pick. 496. It is so in some cases, where the plaintiff has himself failed fully to perform the contract in every particular, and yet has a claim for valuable services, as in the cases of Smith v. Lowell Congregational Meeting-house, 8 Pick. 178, and Brewer v. Tyringham, 12 Pick. 547; or where the contract is rescinded by causes, over which defendant had no control, as in the case of Thompson v. Gould, 20 Pick. 134. Cases more analogous, perhaps, are those of Whipple v. Dow, 2 Mass. 415; Kimball v. Cunningham, 4 Mass. 502; Eames v. Savage, 14 Mass. 425; Hill v. Green, 4 Pick. 114. ■ This principle is fully *19stated in 2 Greenl. Ev. § 104, that where the contract, though not fully performed, has been rescinded by some act on the part of the defendant, the plaintiff may resort to the common counts to recover for what he had done under the special agreement.

This meets the present case, and sustains this mode of setting forth the cause of action.

Judgment for the plaintiff.