Lovell v. Earle

Oct 27, 1879
Reporters:
,
Before:
Gray
Gray, C. J.

At common law, goods sold and work and labor done, either at their reasonable worth, or ‍‌‌​‌‌​‌‌‌​‌‌​​​​​‌‌​​‌​​​‌​‌​‌‌​​​‌​​‌​‌‌‌‌‌​​​‌​‌​​‌​​‌‌‌​‌‌​‌‌​​‌‌​​‌‌​‌​‌​‌‌​​‌​​‌‌​‌‌​‌​​​‌​‍at a stipulated price, or under a special contract fully performed by the plaintiff, *547might be sued for in appropriate common counts; and, by our practice act, any demands that might have been recovered under the common ‍‌‌​‌‌​‌‌‌​‌‌​​​​​‌‌​​‌​​​‌​‌​‌‌​​​‌​​‌​‌‌‌‌‌​​​‌​‌​​‌​​‌‌‌​‌‌​‌‌​​‌‌​​‌‌​‌​‌​‌‌​​‌​​‌‌​‌‌​‌​​​‌​‍counts may be joined in a single “count on an account annexed. The defendant having admitted at the trial that all the items in the account had been furnished, the facts that the amount proved ‍‌‌​‌‌​‌‌‌​‌‌​​​​​‌‌​​‌​​​‌​‌​‌‌​​​‌​​‌​‌‌‌‌‌​​​‌​‌​​‌​​‌‌‌​‌‌​‌‌​​‌‌​​‌‌​‌​‌​‌‌​​‌​​‌‌​‌‌​‌​​​‌​‍to be due was under a special contract, and was less than the sum of the items included in the plaintiff’s count, did not, as matter of law, prevent the plaintiff from recovering the amount ‍‌‌​‌‌​‌‌‌​‌‌​​​​​‌‌​​‌​​​‌​‌​‌‌​​​‌​​‌​‌‌‌‌‌​​​‌​‌​​‌​​‌‌‌​‌‌​‌‌​​‌‌​​‌‌​‌​‌​‌‌​​‌​​‌‌​‌‌​‌​​​‌​‍actually due, deducting the sums already paid him. Gen. Sts. c. 129, § 2, cl. 7. Morse v. Potter, 4 Gray, 292. Hall v. Wood, 9 Gray, 60. Cullen v. Sears, 112 Mass. 299, and cases cited.

In Lowe v. Pimental, 115 Mass. 44, cited for the defendant, the ruling that the plaintiff could not recover if ‍‌‌​‌‌​‌‌‌​‌‌​​​​​‌‌​​‌​​​‌​‌​‌‌​​​‌​​‌​‌‌‌‌‌​​​‌​‌​​‌​​‌‌‌​‌‌​‌‌​​‌‌​​‌‌​‌​‌​‌‌​​‌​​‌‌​‌‌​‌​​​‌​‍a special contract was proved was not excepted to by the plaintiff nor affirmed by this court. Exceptions sustained.