Hull v. Richardson

70 Mass. 598

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1855
• Status: Published

Opinion

By the Court.

Had the declaration in the present case, including the account annexed, been simply for goods sold and delivered, and the proof had been of bread consigned for sale, on the terms stated in the exceptions, and the real object had been to recover a balance due of the proceeds of bread sold under such consignment, there would have been much force in the defendants’ exception, if not decisive. Ayres v. Sleeper, 7 Met. 45 Brown v. Holbrook, ante, 102.

But by the new practice act, St. 1852, c. 312, § 2, cl. 7, “ a count on an account annexed, in the form hereafter prescribed, may be used, when one or more items are claimed, either of which would be correctly described by any of the common counts,” which include “ money had and received,” and “ goods sold and delivered.” The effect'of these provisions is, that a plaintiff may state in his account, and therefore unite in his declaration, any demands, however various or numerous, which under the old practice might have been declared for in any of the common counts.

This declaration is in precisely the form prescribed—that the defendants owe the plaintiffs, according to the account annexed. The defect, if any, is in the account annexed, as not being sufficiently full and precise. This, if true, would be no ground of exception for variance. But we do not perceive that the account is open to the objection. The terms “ bread furnished,” and “ delivered ” to the defendants’ agent are consistent with a sale, but well enough describe a balance due for bread sold on consignment

Exceptions - verruled.