Gilbert v. Fowler, 116 Mass. 375

Gilbert v. Fowler

116 Mass. 375 | Mass. | 1874

Endicott, J.

The petitioner made a contract under seal with the respondent to perform labor and furnish materials in the eree tian of a dwelling-house and stable on land of thé respondent. It *377appeared in evidence before the auditor and at the trial, that one Dodge was interested in the contract, as partner with the petitioner ; and the respondent asked the court to rule that the action could not be maintained in the name of the petitioner alone. The court properly declined so to rule. The answer admits that the contract was made with the petitioner, and the respondent cannot, without amendment, set up that he made it with the petitioner and another jointly. The contract also having been made with the petitioner alone, it is immaterial whether the labor was performed wholly by the petitioner, or jointly with another person.

It is not necessary that the certificate under the Gen. Sts. c. 150, § 5, should contain the averment that the account therein set forth is “ a statement of a just and true account of the amount due, with all just credits.” It is sufficient if the certificate in fact contains a just and true statement of the account, not wilfully or knowingly inaccurate. Exceptions overruled.