
    Massachusetts Collecting and Rating Agency vs. Charles W. Crudeli.
    NOVEMBER 8, 1909.
    Present: Dubois, C. J., Blodgett, Johnson, Parkhurst, and Sweetland, JJ.
    (1) Pleading. Special and General Assumpsit.
    
    The amount claimed to be due in advance for a membership fee under the terms of a written contract can not be recovered upon a declaration containing only a count in book account, and the common counts, but plaintiff should have declared specifically upon the executory contract.
    Assumpsit.
    Heard on exceptions of plaintiff, and overruled.
   Blodgett, J.

The plaintiff corporation has sued in as-sumpsit for the amount of the membership fee claimed to be due in advance for the year 1908, under the terms of a written contract with -the defendant. The declaration, however, is not upon the contract, but contains only the common counts, and a count upon book account. The plaintiff was nonsuited in the Superior Court, upon the ground that the fee was not due at the time the action was brought; and to this decision of nonsuit the plaintiff has excepted.

Fred L. Owen, for plaintiff.

Everitte S. Chaffee, for defendant.

We are of the opinion that the plaintiff can not recover upon this declaration. Even if the contract had contained a clause requiring annual prepayment of the membership fee, recovery could not be had on a count upon book account or on the common counts, but the plaintiff should have declared specifically upon the executory contract upon which he relies as his cause of action. 1 Chitty on Pleading, 340.

The plaintiff’s exceptions are overruled, and the case is remitted to the Superior Court with direction to enter judgment as of nonsuit.  