Noble v. Segal

100 N.E. 1112, 214 Mass. 159, 1913 Mass. LEXIS 1088

• Court: Massachusetts Supreme Judicial Court
• Decided: February 27, 1913
• Status: Published

Opinion

Braley. J.

If at common law, in framing a declaration in assumpsit, the early practice was to make each demand the subject of a separate count, such demands were later embraced in one count, and were treated as comprising the consideration of but a single promise. Rooke v. Rooke, Cro. Jac. 245. Webber v. Tivil, 2 Saund. 121, b. A recognition of this rule appears in Whitwell v. Brigham,, 19 Pick. 117, where a declaration combining all the money counts in one count was held to be undoubtedly good.

Under our practice act, R. L. c. 173, § 6, cl. 7, the common counts cannot be used unitedly, yet as pointed out by Loring, J., in Massachusetts Mutual Life Ins. Co. v. Green, 185 Mass. 306, 310, “a plaintiff who declares on a count on an account annexed has by legal intendment made with respect to the item stated in the' account annexed all the allegations contained in all the common counts.” The second and third items in the plaintiff’s account annexed therefore are well pleaded.

The defendant, if he desires further information as to the itemization of the plaintiff’s general claim, could have demanded a bill of particulars before answering to the merits. R. L. c. 173, § 68. McGurk v. Cronenwett, 199 Mass. 457, 461. But, the defendant having been content to go to trial on the pleadings, the evidence introduced by the plaintiff as to the number of. men employed, the time actually taken by each, and the value of their services, respectively was competent. DeMontague v. Bacharach, 187 Mass. 128. Miller v. Shay, 145 Mass. 162.

The exceptions must be overruled.

So ordered.