By the Court.
delivering the opinion.
Was the case such, that the verdict found on this count’ •was good ?
The plaintiff in error insists that the evidence shows a special contract between the parties, and a special contract that was within the fourth section of the Statute of Frauds.
The defendant in error, not admitting the contract to have • been within the Statute of Frauds, replies that it was abandoned by the parties; and that, the contract being abandoned, the defendant was entitled to be paid for his work and labor, whatever the work and labor were worth.
In this we think the defendant is right, if he is supported by the evidence. Even if the special contract was within the Statute of Frauds, it was not void. That only made it a contract on which no action could be brought. It was a contract, therefore, which even if it was within the Statute, could be rescinded by the parties to it. And if once rescinded, its influence of every sort would be gone; and therefore, its power to affect the question of the defendant’s right to recover on the count for work and labor, would be gone..
Was it rescinded ? The affirmative was exceedingly slight; but we cannot say that there was none whatever. And in so small a case, we do not feel that it would be a proper exercise of discretion to grant a new trial, if theré was any evidence to support the verdict; especially, as if we granted a new trial, we should have to over-rule the decision of the Court which tried the case.