*487The opinion of the court was delivered hy

The only question in this case is, whether the plaintiff was entitled to charge for his services by the day, or whether the special contract must govern the rate of compensation. From the facts reported, and especially from the fact that the plaintiff underlet portions of the work, it is evident 'the parties supposed it was to be done under a special contract, — and it seems the plaintiff admitted, before the auditor, that he went on with the job, until a large portion of the work was done, as if by the contract, and with the expectation that he was to have one.

The auditor does find that in August, 1847, the parties made a verbal contract, specifying the manner in which the work should be done, and fixing the compensation at nine hundred dollars. Although it was then agreed that this verbal contract should be reduced to writing, which was never done, yet this will not warrant the party in repudiating the verbal contract, and charging by the day, as the auditor finds a contract was made, and that the charges in dispute, for labor and board, were done and furnished by the plaintiff, in the progress of executing his part of the verbal contract. The contract was not, by the law, required to be in writing, and the plaintiff having gone' on, under the verbal contract, operated as a waiver of his right to have it reduced to writing. Though he might have refused to have gone on until the contract was put in writing, yet as he did not, he cannot now repudiate it and charge by the day.

The plaintiff’s charges must, then, be governed by the contract, and no question is raised in argument in regard to what should be the effect of the plaintiff’s having abandoned the job before it was finished, upon his right to compensation; we, therefore, affirm the judgment of the county court without considering it.

Judgment affirmed.