The plea puis darrein continuance offered an immaterial issue, and was properly disregarded. If plaintiffs had sold their demand, — whether before suit brought or afterwards — the purchaser was still entitled to pursue his remedy in the name of the original contracting party.
The court did not err in holding the plaintiff entitled to recover on the common counts in assumpsit, for what had been done by him on the special contract as modified. The case is governed by Allen v. McKibbin, 5 Mich., 449. Nor can we say the court erred, as matter of law, in being guided by the contract in determining the quantum meruit. The circumstances — upon which we cannot pass — might or might not render it proper to be governed by it. Nor do we think any error in the allowances made to the parties respectively is shown by the record.
The judgment must be affirmed with costs.