
    Edwin H. Lovell vs. David M. Earle.
    Worcester.
    October 4. — 27, 1879.
    Endicott & Lord, JJ., absent.
    Under a count on an account annexed, the plaintiff may recover the amount actually due for goods sold and work done under a special contract for a round sum, if the contract has been fully performed.
    Contract on an account annexed for goods sold and work done. Answer: 1. A general denial. 2. That all the items charged in the plaintiff’s account were covered by a special contract, by the terms of which the plaintiff was to furnish the goods and labor for a round sum.
    At the trial in the Superior Court, before Pitman, J., with out a jury, the defendant admitted that the several items in the plaintiff’s account were furnished; but contended that they were furnished under a special contract for a fixed sum less than the amount now claimed; and put in evidence tending to prove a special contract. The plaintiff’s evidence tended to prove the contrary.
    The judge found that there was an entire special contract; and ruled that the plaintiff could not recover under the pleadings. The plaintiff alleged exceptions.
    
      J. H. Bancroft, for the plaintiff.
    
      S. Utley, for the defendant.
   Gray, C. J.

At common law, goods sold and work and labor done, either at their reasonable worth, or at a stipulated price, or under a special contract fully performed by the plaintiff, might be sued for in appropriate common counts; and, by our practice act, any demands that might have been recovered under the common counts may be joined in a single "count on an account annexed. The defendant having admitted at the trial that all the items in the account had been furnished, the facts that the amount proved to be due was under a special contract, and was less than the sum of the items included in the plaintiff’s count, did not, as matter of law, prevent the plaintiff from recovering the amount actually due, deducting the sums already paid him. Gen. Sts. c. 129, § 2, cl. 7. Morse v. Potter, 4 Gray, 292. Hall v. Wood, 9 Gray, 60. Cullen v. Sears, 112 Mass. 299, and cases cited.

In Lowe v. Pimental, 115 Mass. 44, cited for the defendant, the ruling that the plaintiff could not recover if a special contract was proved was not excepted to by the plaintiff nor affirmed by this court. Exceptions sustained.  