The Opinion of the Court was delivered by
This cause was tried in the Circuit Court of Knox county, at the November term A. D. 1846, and a verdict was found by a jury in favor of Hutchinson, administrator of Teed, the plaintiff below, for $462-50. The Court overruled a motion for a new trial, and rendered judgment for said amount, in favor of plaintiff, from which judgment the defendant, Selby, has appealed.
The errors assigned upon this record are very numerous indeed; but we do not deem it necessary to consider them all, as many of them involve no principles of importance, and as a decision of all of.them is rendered unnecessary by the disposition which the Court has made of the case.
The first error assigned, which we feel inclined to notice, is, that the Court overruled a motion made by Selby’s counsel for security for costs, founded upon an affidavit showing the insolvency as well of the plaintiff, the administrator, as of the estate of Teed itself. The affidavit of the defendant not being embodied in the bill of exceptions, and the record nowhere showing that the opinion of the Court, in overruling said motion, was excepted to, this objection is not properly before us for adjudication. We are, however, of opinion, that inasmuch as the Court is not directed by the statute to grant such a motion unless it be satisfied that the plaintiff is unable to pay the costs, the decisions of the Judge in relation to motions of this character, cannot be assigned for error. This has been so held in Gesford v. Critzer, 2 Gilm. 699. It is, moreover, a general rule, that an administrator is not personally liable for costs. See Burnap v. Dennis, 3 Scam. *327478, and nothing is shown here by the defendant to take the plaintiff out of the operation of this general rule.
The assignment of the second error presents the question whether there was a misjoinder of counts or not. The action is in assumpsit, and it is contended by the counsel for appellant that the fourth count in the declaration is substantially one in covenant, and should not have been joined with the other counts, which are all in assumpsit. A misjoinder of counts upon which the same judgment cannot be rendered, may be assigned for error, and is hot cured by verdict. 16 Johns. 148. And hence this point is properly before us. In determining the question of a misjoinder, we have to be governed more by the form of the count, than by the substance contained it. Although a count may be held on demurrer to be defective in stating the cause of action, yet, if in its form it correspond with the other counts, to which it may have been joined, an objection to the whole declaration on account of misjoinder does not exist. Counsel have much relied on the case of Orton v. Butler, 16 Eng. Com. Law R. 361. But that case is one where a count intended to be one in trover, was joined with one in trespass, when in fact it had none of the characteristics of a count in trover in it, except the usual conclusions, and showed upon its face a clear cause of action in assumpsit« It is expressly said in that case by one of the Judges (p. 363,) that the count was not, in point of form, like one in trover. Now, in the present case, the fourth count alleges that the parties made a certain agreement in writing, under seal, reciting the same, and then avers that the plaintiff’s intestate proceeded to comply with all the stipulations on his part, but that he was prevented by the defendant’s failure to comply, from wholly doing and performing the said agreement, and that by reason thereof the said agreement became rescinded. It avers farther, that in consequence of this rescission, the defendant became liable to pay to said Teed as much as the work done by him was reasonably worth, &c., &c., concluding in the usual way by averring an assumpsit and refusal. There can be no doubt, that in point of form this is a count *328in assumpsit. The sealed instrument is merely set out by way of inducement, a rescission of the contract is plainly alleged, restoring the parties to the condition in which they stood before making it, and from this original condition, the liability of the defendant to pay for the work a reasonable price is correctly deduced.
There was a separate demurrer to this fourth count, but as the defendant, after the demurrer was decided against him, pleaded over, the question whether a party can sue in assumpsit under a state of case as shown in said count, is not presented on the demurrer. The instructions, however, which the Court gave, and to the giving of which the defendant below objected, raise the same point, bringing the question properly before us. We are aware that Courts of very high authority have held, that a party must seek his remedy on his special contract alone, where he has performed work under said contract, and has been prevented by the act or default of the opposite party, to complete all he had unundertaken to perform. The case in 16th of Peters, 319, however, to which our attention has been specially directed, does not go quite that far. The Court there decide no more than this, that where a deed is the foundation of the claim, and can still be regarded as subsisting and in full force between the parties, the action to enforce its provisions must be upon the instrument itself.. This decision we are not disposed to question. It is different, however, where a manifest default on the part of one of the parties can be made* to appear, amounting in law to the total rescission by him, and putting it in the power of the other party to rescind it on his part. This Court has repeatedly and uniformly decided, that in such a case a party may recover for work and labor done in assumpsit. We do not feel called upon to disturb the law now as settled in our State by a train of decisions. This Court have said in the case of Butts v. Huntley, 1 Scam. 413, “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 *329labor.” This decision is sustained in Herrington v. Hubbard, 1 Scam. 569; Reed v. Phillips, 4 Scam. 40, and Bannister v. Bead, 1 Gilm. 100; in which last case the authorities seem to have been carefully collected and reviewed. In addition, 10th Johns. 36, and 4 Wend. 290, may he cited as sustaining the view taken by the Supreme Court.
Another error assigned is, that by the contract set out in the fourth count, and given in evidence by the plaintiff, the parties became partners, and that consequently the plaintiff has mistaken his remedy. In this agreement, Teed covenants ato do the carpenter and mill-wright work appertaining to a flouring mill of four run of stone, in a good and workmanlike manner, to pay the defendant § 60, to furnish money for the purchase of irons, glass, nails, bolting cloths, &c., which, with all other moneys advanced, was to be refunded with twelve per cent, interest from the completion of the mill, from defendant’s share of the profits of said mill. Teed was to advance such further sums as he could command, and as should be necessary for the prosecution of the work, and was to advance the money for the payment of one Consel for hewing timber for the mill, one year from the date of the agreement. All money to become due Teed under the contract, was to remain unpaid until all debts then due by the defendant could be liquidated. The defendant, Selby, covenanted to furnish the hewn timber, sawed lumber, mill stones and other materials, to do the necessary digging, to hoard Teed and his hands, and to convey to Teed on the completion of the mill, one undivided fourth part of certain lands, and an undivided fourth part of the mill and appurtenances. Six months from the date of the contract, which was May 2d, 1840, Teed was to receive one fourth part of the profits arising from the saw mill on the lands to he conveyed, and one fourth part of the profits of the flouring mill, as soon as started, and no hand was to be employed without the consent of both parties.”
Upon a careful examination of the terms of this agreement, and applying to them the general principles in relation to what constitutes a partnership, as between the parties ihem™ *330selves, inter sese, we are strongly inclined to the opinion that Teed and Selby did become partners by virtue of said instrument, at least from the time that Teed became entitled to the perception of the profits in” the said two mills. It is, however, unnecessary to decide upon the character of this instrument, under the view which we take of this objection. It is now made for the first time, the record clearly showing "that the defendant never made it in the Court below. 'As remarked before, the fourth count is not before us on demurrer, the defendant having waived any objections to it by pleading over. No motion was made to exclude this paper when offered by plaintiff, nor was the evidence demurred to as showing a state of facts destructive of the plaintiff’s right to recover. The Court was not called upon in any manner whatever, to determirie whether the contract created a partnership or not. On the contrary, it seems to have been the desire of the defendant’s counsel to make it appear by the evidence, that Teed was not a partner of the defendant. Under these circumstances, we cannot allow him now the benefit of this objection. In a case precisely like the present, where it was insisted, in the Supreme Court of New York, that the action could not be sustained, as the plaintiff and defendant before the commencement of the suit had become partners in the subject matter, it was held “that it was too late to urge the objection now for the first time.” Smith v. Allen, 18 Johns. 247. We think that when the record satisfactorily shows, that the parties did not deem it proper to question certain of their respective rights in the Court below, they must be considered as having waived them, and cannot be permitted to dispute them here, in a Court of appeal, for the first time. If a different course were allowable, this Court in many cases, and in violation of the Constitution, would become a Court of original jurisdiction.
The last assignment of error goes to the overruling of the motion for a new trial, which was made by defendant, for the - reason amongst others, that the verdict was against law and evidence; and thé consideration of this assignment renders it necessary to advert to the evidence, which is very *331voluminous indeed. The following facts, which bear particularly on the question of rescission, and are deemed important, and which have been extracted and condensed with some considerable care, appear to have been established by the evidence:
Teed, some time after the contract was made, employed hands and went to work on the frame of said flouring mill, and sometime in August 1840, he was ready to raise said frame, but he was delayed in doing so, the defendant, Selby, not having done the necessary digging. It was not before sometime in October that the frame was put up. Some of the materials, as some witnesses say, were not furnished quite as fast as they were needed. If they had been furnished in time, witnesses think that Teed would have probably procured hands and finished the job sooner. Teed went on and put in the running work at first for two run of stones, and the mill was started. In summer of 1843, about three weeks before his death, Teed had prepared in part, the wheels for the running work for the remaining two runs of stones, and wanted timber to make the cogs for said wheels, which was not then furnished. The mill stones for the last two run were not furnished before Teed’s death. Some of the plaintiff’s witnesses are of opinion, that if the materials had all been properly on hand, the grist mill might have been completed before Teed died. Some time after Teed’s death, his administrator, a physician, offered to complete the contract entered into by his intestate, which defendant declined, unless he would first take out the running work put in by Teed, as it was not well done, and of no use, and put in other work. It is shown by the testimony of several wheelwrights that the running work put in by Teed was really very defective, not worth the material, and that it had to be taken out and had to be replaced by anew one. The delayin digging is explained by several witnesses, as arising from the fact that Teed had to direct it, or to lay it out, and that he failed to do soj that at one time when the digging should have been done, he was absent for upwards of a week. Teed, while he was at work at Selby’s mill, was engaged in building two or *332more mills for other people. The defendant, Selby, complained often to Teed about the work not being well done, and also heard Selby complain that he, Teed, had failed to give directions as to the digging. Teed was never heard to complain about Selby’s delay. If full credence were to be given to one of defendant’s witnesses, it would appear that in several instances, the materials were ready a year before Teed made use of them, and that at one time, he did not work at all for six months; and also that when Teed asked for the timber to make the wheels for the remaining two run of stones, he wa,s required to point out what kind of timber he wanted, which he promised but failed to do. The witness, for reasons apparent on the record, is, however, not entitled to full credit, but in so far as his testimony is supported by others, and this is really the case with the greater portion of his . statements, it cannot be rejected. All witnesses who are asked the question, testify that Teed, up to the time of his death, claimed that the contract was in force. It does not appear that Teed furnished the $50-00, which he was to have furnished, nor any other sums of money, save what he had made out of the profits of the grist mill, and what he had paid to Consel. Several witnesses say that if Teed had worked steadily, the whole work might have been performed before he died.
Upon this testimony, the jury below found a verdict for plaintiff, or in other words, they found that the contract heretofore existing, had become totally rescinded by the default or neglect of the defendant, Selby, as to himself, and that Teed, having done every thing on his part to be performed, became entitled to treat it as rescinded.
Now, we are of opinion that in this the jury were' most obviously and manifestly mistaken. If the evidence show any default at all on defendant’s part, it shows one so slight in its nature, that no rescission can be founded upon it, for it is not every partial neglect or refusal to comply with some of the terms of the contract by one party, which will entitle the,othey/t° abandon at once the special and solemn obligatioffllpM-cred into by the parties, and by which they had made ■ *333for themslves the law which was to control them. In order to justify an abandonment of the contract, and of the proper remedy growing out of it, the failure of the opposite party must be a total one; the object of the contract must have been defeated, or rendered unattainable by his misconduct or default. For partial derelictions, and non-compliances in matters not necessarily of first importance to the accomplishment of the object of the contract, the party injured must still seek his remedy upon the stipulations of the contract itself.
The most that can be said of Selby’s conduct is, that h© was somewhat dilatory in preparing the digging, and furnishing materials. But it was at last all furnished, with the exception of some timber which was asked for a short time before Teed died. There was no necessity for furnishing the two last mill stones, as the running work for them was not yet prepared when Teed died. Much of the defendant’s testimony contradicts the fact that there was any delay; but as the jury had a right to determine the contradictory evidence in favor of the plaintiff, we, of course, do attach no weight to these denials here. It is clearly established, however, by the proof, that Teed was equally dilatory—that he did not work steadily, and that some of Selby’s delay was in fact caused by Teed’s own negligence and carelessness. But even if Selby’s default had been one of greater magnitude, and one which could have been clearly charged upon him alone, it is manifest from the evidence that Teed waived all objections on that score, and proceeded with the work until very shortly before his death. If, then, he had any cause to abandon the contract at any time while he was progressing with his work, it is evident that he has not chosen to do so, but by going on after the existence of such cause, he has affirmed, in the most unequivocal manner, the continued subsistence of the contract.
As for the offer of the administrator to complete the contract, and the refusal of Selby, it is only necessary to say, without deciding any other point which might be presented by this peculiar state of facts, that the refusal of Selby was *334qualified by his stating, that he would allow such completion, provided the defective work was first taken out, and other put in place of it. This we think he had a right to demand, and it does not appear that the administrator assented to this proposal.
"The motion for a new trial, for the reason that the jury found against the law and the evidence, ought to have been allowed by the Court below. For this .error, judgment must be reversed at the costs of the appellee, to be paid by him in due course of administration, and the cause is remanded for a new trial, and such further proceedings as to law and justice may appertain.
Judgment fever sed.