Lovell v. Earle

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.