Lowe v. Pimental

115 Mass. 44, 1874 Mass. LEXIS 142

• Court: Massachusetts Supreme Judicial Court
• Decided: March 11, 1874
• Status: Published

Opinion

Gray, C. J.

1. By the practice in this Commonwealth, whatever might have been recovered mider the common counts at common law may be the subject of a count on an account annexed. The common counts included work and labor done, and goods sold, either for a fixed price, or for their reasonable worth or value. It was therefore rightly ruled that the plaintiffs, under their declaration, might recover for labor at a rate agreed by the day, and for materials furnished at reasonable prices. Gen. Sts. c. 129, §§ 2, 87. 1 Chit. Pl. (2d Am. ed.) 335, 337.

2. The presiding judge, having ruled that if the work was done and the materials furnished under a special contract the plaintiffs could not recover under their declaration, rightly rejected, as immaterial, evidence of the breach of such special contract, and of the value of the work if such contract had been completed.

3. The auditor’s report was rightly submitted to the jury as primé fade evidence of all facts involved in his statement of the account between the parties, including the question whether there was a special contract between them. Gen. Sts. c. 121, § 46. Locke v. Bennett, 7 Cush. 445.

4. It is a common and convenient practice to permit the plaintiff to rest his case in the first instance after putting in the auditor’s report, and to introduce additional testimony in support of it at the close of the defendant’s evidence. The order of proof was in the discretion of the presiding judge, and not a subject of exception. Brewer v. Housatonic Railroad, 104 Mass. 593.

Exceptions overruled.