Curia, per

If the plaintiff, in assumpsit for work and labor, prove a special agreement and the work done, although the work may not be pursuant to the agreement, yet if it had been accepted or enjoyed by the defendant, plaintiff shall recover on the quantum meruit, for otherwise he would not be able to recover at all. Bul. N. P. 139. The amount of recovery in such case should be, not the price agreed on, nor the value, as if there had been no special agreement, but the price agreed on, subject to *363the deduction of so much as it would take to alter the work so as to make it correspond with the specifications of the agreement. 1 M. & Rob. 219.

In the case before us, the contract with Sessions may have been adopted by the parties as part of their agreement ; but the plaintiff was not bound to produce it. He might have recovered simply upon proof of work done and materials furnished. As matter of defence, the defendant might have produced the contract. If by its terms, as adopted by these parties, the right of action had appeared to be destroyed, then it would have been a bar; otherwise it might have served to mitigate damages, and have been referred to in like manner as would have been a plan and estimate in a printed book, or a house in a neighboring street, which the parties, by their conversation and agreement, had adopted as a standard of prices or of workmanship.

Let the non-suit be set aside, and a new trial be ordered.