Lockwood, Justice, delivered the opinion of the Court: This was an action of assumpsit commenced originally before a justice of the peace, by Huntley against Butts, for work and labor. On the trial of the cause in the Circuit Court, it appeared from the testimony, that the parties entered into a written agreement under seal, that Huntley should do the millwright work to a saw-mill by the 21st of April, 1836, and that Butts should furnish the materials.

It was further proved that Huntley and two hands worked at the mill for twelve days each, and would have completed the mill by the day stipulated, but that Butts did not furnish the mill irons and other materials, and so prevented Huntley from finishing the mill. The action was brought to recover the value of the work done. After the testimony of the plaintiff below was concluded, the defendant moved the Court to instruct the jury to find for the defendant as in case of nonsuit; which instruction the Court below refused to give. This refusal of the Court is assigned for error.

It was contended, on the argument, that as some work was done under the written contract, that covenant, and not assumpsit, was the proper form of action. This position would have been correct had Huntley sought to recover the full sum stipulated to be paid upon the completion of the mill; but by bringing an action of assumpsit, the plaintiff could only recover the value of the work done.

The law is well settled, that where a written contract exists to perform a particular piece of work, and the workman performs part, and is prevented from finishing it by the other party, he may treat the contract as rescinded, and recover the value of his labor. The Circuit Court, consequently, decided correctly in overruling the motion to instruct the jury as in case of nonsuit. The judgment is affirmed with costs. Judgment affirmed.