Noble v. Segal

• Decision Date: 27 February 1913
• Citation: 100 N.E. 1112,214 Mass. 159
• Parties: NOBLE v. SEGAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 159

100 N.E. 1112

NOBLE v. SEGAL.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1913

SYLLABUS

The following is a copy of the declaration in an action of contract alleging that defendant owed plaintiff for work, labor, and materials according to the following account annexed:

Boston Oct. 8, 1906.

Louis Segal,

To Charles T. Noble, Dr.

1. To work and labor done and materials furnished on three houses on Georgia street, Boston, Mass., as per contract	$1,095 00
2. To 70 days extra work for plasterers at $5 per day	350 00
3. To 80 days extra work for tenders at $3 per day	240 00
	---------
Total	$1,685 00
4. Credit by cash	794 00
	---------
Balance	$891 00

COUNSEL

Charles H. Cronin, of Boston, for plaintiff.

Lourie & Lourie and John H. Blanchard, all of Boston, for defendant.

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 treated as comprising the consideration of but a single promise. Rock v. Rock, Cro. Jac. 245; Webber v Tivill, 2 Saund. 121, b. A recognition of this rule appears in Whitwell v. Brigham, 19 Pick, 120, 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. 303, 310, 70 N.E. 202, 203, '* * * a plaintiff who declares in a count on an account annexed, has by legal intendment made, with respect to the items stated in the account annexed, all the allegations contained in the common counts * * *.' The second and third items in the plaintiff's account annexed therefore are well pleaded. The defendant if he desired 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, 85 N.E. 576, 19 L. R. A. (N. S.) 561. But 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. De Montague v....