
    George Mullett & others vs. Theodore J. Bemis.
    The owner of a water mill which was benefited by a reservoir owned in common by the proprietors of other mills on the stream promised them that, if they would make certain necessary repairs of the reservoir dam, he would pay his proportionate share of the cost. Held, that after making the repairs they could recover his proportionate share of the cost in an action on a count upon an account annexed.
    Contract upon an account annexed for one seventh of the cost of repairs of the dam and gates of a reservoir.
    At the trial in the superior court, before Vose, J., the plaintiffs evidence tended to show that they were tenants in common of a reservoir, upon the dam and gates of which the repairs were made; that the defendant had no legal interest therein, but owned a mill privilege below, which was benefited by the reservoir; that, before the repairs were made, notice was given to the defendant that they were necessary and that the plaintiffs intended to make them, and he was requested to attend a meeting of the mill-owners in regard to them, and promised the plaintiffs that, if they would make them, he would pay his share • that the plaintiffs made the repairs; that the repairs were necessary, as the reservoir dam would not hold water without them ; and that there were six mills on the stream, below the reservoir, which were owned by the plaintiffs individually, besides the defendant’s mill.
    The defendant asked the judge to rule that the plaintiffs could - not recover in this form of action ; but he refused so to rule, and instructed the jury that, if they believed that the reservoir dam was a benefit to the defendant’s mill, and the repairs made were necessary, and the making of them resulted in a benefit to the defendant, and the defendant, upon receiving notice of the necessity of the repairs and the intention of the plaintiffs to make them, promised the plaintiffs to pay the plaintiffs his proportionate share if they would make them, then the plaintiffs were entitled to recover the defendant’s reasonable share of the expense of the repairs. The jury found for the plaintiffs; and the defendant alleged exceptions.
    
      F. P. Goulding-, (F. H. Dewey with him,) for the defendant.
    
      P. E. Aldrich, (P. G. Bacon with him,) for the plaintiffs.
   Chapman, C. J.

The repairs of the dam having been made for the benefit of the defendant as well as the other parties interested in maintaining it. and he having promised beforehand that if the plaintiffs would make the repairs he would, pay his share of the expense, the cause of action is correctly described by a general count, it being for work done and materials furnished. Exceptions overruled.  